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.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent Stephen S. Hautala was licensed as a registered real estate broker in Florida; Almar Realty, Inc., was licensed as a real estate brokerage corporation in Florida; and Arlene J. Guennel was licensed as a real estate salesman in Florida. At the time of the alleged misconduct, Robert J. Tracey owned and occupied a home located at 1123 SE 36th Terrace in Cape Coral, Florida, which he occupied as his private residence. He met Respondent, Arlene Guennel, at a construction site at which he was working and agreed to let her attempt to sell the house. He gave her a key so she could preview it and never received the key back. After this meeting, Mr. Tracey did not contact Ms. Guennel, nor did he hear from her for quite a while. From time to time he would come home and find his bed had been made and he assumed that Ms. Guennel had done it. She had on several occasions straightened up the house so that it would be presentable to show. Mr. Tracey did not execute a formal listing agreement with Ms. Guennel. One evening in early April, 1986, she came to the Tracey home with a sales contract bearing an offer of $115,000.00. Mr. Tracey did not accept that offer by signing his name to the contract which now bears his purported signature, "Bob" Tracey. The listing agreement purportedly entered into by Mr. Tracey with Ms. Guennel, who was representing Almar Realty, also bears the signature of the lister as "Bob" Tracey. Mr. Tracey strongly contends that he never signs his name that way and it is found that Mr. Tracey did not sign either document. Respondent, Guennel, admits to having signed Mr. Tracey's name to the sales contract and though she denies having signed the listing contract, it is found that she signed it, or procured someone else to sign it. Mr. Tracey contends that he did not agree to the terms of the contract presented to him by Ms. Guennel. He did, however, initial certain counterproposals which are contained on the document and admits to having initialed it in the lower right hand corner. Mr. Tracey denies having given Ms. Guennel any permission to sign documents or initial corrections to documents in his name, utilizing his signature or initials. However, it is found that on the evening that Respondent Guennel came to Tracey's house with the contract containing the offer to purchase the property, he did propose a counter offer. He also indicated that in the event that Ms. Guennel could not get to him in person with a proposal, it would be all right for her to secure verbal approval by phone and thereafter make the appropriate changes in the contract. At no time, however, was Mr. Guennel or Mr. Hautala authorized to commit Mr. Tracey to any change without at least his verbal approval and neither was authorized to affix his signature to any document. William C. Rhoad was referred by his former broker to the local Merrill, Lynch office and Ms. Ciavarella, the local representative, showed him the Tracey home which was listed in the multiple listing book. Mr. Rhoad had indicated his need for a large home in excess of 2200 square feet and chose the Tracey home after seeing several others on the basis of the square footage represented in the multiple listing book. Neither Mr. Rhoad nor his agent measured the property. He made an offer which was presented by his agent to Respondent Guennel at Ms. Guennel's home on or about April 7, 1986. Ms. Guennel called her back on or about April 9, 1986, to advise that the contract had been signed by the seller. The seller's signature, however, was in conjunction with a counter offer of $119,500.00 as opposed to the $115,000.00 offered plus a split of 50/50 on the cost of the title insurance. Mr. Rhoad countered that counteroffer with another offer of $119,000.00 and Ms. Guennel, after talking with Mr. Tracey about it, advised that Tracey had accepted the contract at $119,000.00 without the need to pay 50 percent of the title insurance costs. When the closing was held, Respondent Guennel was not present. As the parties were going over the closing statement, Mr. Tracey said he would not pay $363.00 for title insurance. When he asked why he should pay, Ms. Ciavarella, who was also present, advised him that it had been provided for in handwriting on the contract which he had allegedly initialed. Mr. Tracey, immediately denied having initialed that change and denied signing the contract. It became apparent then that Respondent, Guennel had signed the contract and at that point, Mr. Tracey's broker, the Almar representative, agreed to pay the title insurance cost and have it come out of their portion of the commission. Mr. Tracey had, however, initialed the title insurance change and was subsequently held responsible for it in court. It also appeared that the room size, as described on the multiple listing placed by Ms. Guennel, as well as the lot size, the year the house was built, it's elevation above sea level, and several other particulars were incorrect. Notwithstanding the fact that Mr. Rhoad looked at the house four or five time prior to deciding to buy it and had some doubt as to the size, he said nothing about this until shortly before closing. Because of the various discrepancies described above and Mr. Rhoad's feeling he was being cheated, Mr. Rhoad attempted to back out of the deal. He was contacted, however, by his own agent and asked if he would reconsider going through with the purchase if concessions were made. He agreed and the listing agent, Mr. Tracey, and his agent reduced their commissions by a total of $3,500.00, all of which was passed on to Mr. Rhoad. This reduction in price was prorated $2,500 to Almar Realty, $500.00 to Mr. Tracey, and $500.00 to Merrill, Lynch Realty. The errors which appeared in the multiple listing book were the result of the input accomplished by Ms. Guennel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent Arlene J. Guennel's license be suspended for one year and that she pay a fine of $500.00; that the license of Almar Realty, Inc. be suspended for one year; and that the charges against Respondent Stephen S. Hautala be dismissed. RECOMMENDED this 12th day of February, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1988. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire DPR, Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Neale Montgomery, Esquire Post Office Drawer 1507 Ft. Myers, Florida 33902 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(b), Florida Statutes (1995) (hereinafter, "Florida Statues"), by engaging in dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate sales person pursuant to license number 0590475. Respondent was last licensed as an inactive sales person located at 6752 Longmeade Lane, Orlando, Florida 32822. In 1993, Mr. Efrain and Mrs. Luz Rivera (the "Riveras") approached Respondent to represent them in purchasing a house. Respondent agreed to represent the Riveras as a buyer's agent. The Riveras are not related to Respondent. While Respondent was representing the Riveras as a buyer's agent, Respondent asked the Riveras for a loan. Respondent wanted the loan to assist him in the establishment and publication of a real estate magazine entitled, La Casa. Respondent had gained the Riveras' trust while representing them as their real estate agent. The Riveras loaned Respondent $2,500 from the money they needed for a down payment on the house they sought to purchase. Respondent published La Casa for a brief period. Then the business closed. Respondent paid the Riveras $250 as a partial payment on the loan. Respondent has not paid the Riveras any other amounts. The Riveras were unable to purchase a house without the $2,500 they loaned to Respondent. In January 1995, the Riveras filed suit to recover the money they loaned Respondent. The court entered a final judgment of $3,598.98. Respondent has not satisfied any portion of the final judgment against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b) and suspending Respondent's license for three years from the date of this Recommended Order.RECOMMENDED this 5th day of May, 1997, in Tallahassee, Florida. COPIES FURNISHED: Henry M. Solares, Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 DANIEL MANRY 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 5th day of May, 1997. Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jorge Rivera, Jr., pro se 6752 Longmeade Lane Orlando, Florida 32822
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2013.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed real estate broker, holding license number BK-475943. At no time during the time Respondent has held this license has any disciplinary action been taken against her. Respondent was at all times material to the instant case, the sole officer and director of Bright Star Realty and Investments, Inc. (Bright Star), a Florida corporation. At no time material to the instant case was Bright Star a Florida-registered brokerage corporation.2/ In October 2008, Milton Gibbons entered into a contract (Purchase Contract) to purchase from Jason and Jennifer Van Buskirk property located at 8510 Northwest 46th Street, Lauderhill, Florida (Purchase Transaction). The Purchase Contract was drawn on a pre-printed "'As Is' Contract for Sale and Purchase" form approved by the Florida Association of Realtors and The Florida Bar. Respondent, acting on behalf of her unlicensed brokerage corporation, Bright Star, represented to Mr. Gibbons in the Purchase Transaction. Bright Star was listed in the Purchase Contract as a "[c]ooperating [b]roker" and the "only broker[] entitled to compensation in connection with this Contract." No other broker, including a listing broker, was mentioned in the Purchase Contract, notwithstanding that AmeriStar Properties of South Florida, Inc., had listed the property pursuant to an "Exclusive Right of Sale Agreement" it had with the Van Buskirks which was still in effect at the time Mr. Gibbons and the Van Buskirks entered into the Purchase Contract. Under the terms of the Purchase Contract, Mr. Gibbons was required to make a deposit totaling $9,600.00 to be "held in escrow by Bright Star," which was designated in the Purchase Contract as the "Escrow Agent." The Purchase Transaction never closed, and a dispute arose concerning the appropriate distribution of the $9,600.00 that had been deposited by Mr. Gibbons and was being held in escrow in accordance with the Purchase Contract. Pursuant to section 475.25(1)(d)1., Florida Statutes, and Florida Administrative Code Rule 61J2-10.032, Respondent, on behalf of the "Escrow Agent," Bright Star, notified Petitioner of the dispute in writing, using a form developed for that purpose. On the completed form that Respondent submitted, which was signed by her and dated May 11, 2009, she indicated that she was the "broker" and Bright Star was the "brokerage firm" involved in the real estate transaction in question; that her address was "520 NW 165 St. Rd. Suite 112, Miami Fl 33169"; and that the "amount in dispute" was $9,600.00. The Van Buskirks subsequently filed a complaint against Respondent with Petitioner. The complaint was investigated by one of Petitioner's investigators, Felix Mizioznikov. His investigation began in September 2009, and concluded in August 2010. On or about May 3, 2010, Mr. Mizioznikov sent to Respondent, by certified United States Mail, two packages containing the complaint and other materials. One package was sent to what Petitioner's computerized records reflected was Respondent's "license location"--12865 West Dixie Highway, #201, North Miami, Florida 33161. The other package was sent to what those same records reflected was Respondent's "mailing address"--520 Northwest 165th Street, #112, Miami, Florida 33159. Both packages were returned to Mr. Mizioznikov by the United States Postal Service. The returned package that had been sent to the 12865 West Dixie Highway address was stamped "MOVED LEFT NO ADDRESS." The returned package that had been sent to the 520 Northwest 165th Street address was stamped "UNCLAIMED." In June 2010, Mr. Mizioznikov visited both the 12865 West Dixie Highway address (where, he discovered, a law firm was located) and the 520 Northwest 165th Street address. There was no indication that Respondent had a business presence at either location. On June 21, 2010, Mr. Mizioznikov sent to Respondent's attorney, Joseph Gibson, Esquire, by facsimile transmission, an Office Inspection & Escrow/Trust Account Audit Form (signed by Mr. Mizioznikov), requesting that Respondent, within five days "provide [her] Broker business records and monthly reconciliation escrow statements for dates 5-2008-Current." Mr. Mizioznikov later contacted Respondent herself and requested her to produce these records. As of the date of the hearing, Respondent had not produced the requested records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order (1) dismissing Count One of the Administrative Complaint; and (2) finding Respondent guilty of Counts Two and Three of the Administrative Complaint and disciplining her therefor as described above. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2012.
Findings Of Fact At all times pertinent to the matters considered herein, Respondent Jim E. Barnes operated the Frosted Mugs, a bar at 2109 East Business Highway 98, Panama City, Florida, under 2-COP License 13-723, issued by the State of Florida initially on October 1, 1981, and renewed thereafter. The license history shows no suspensions or revocations since the initial issuance. The only minor disciplinary action was the issuance of a warning notice in January, 1982, for having a penny jug game on the premises--an extremely minor violation which was corrected immediately and which is of no probative or other effect for the purposes of this hearing. The area of the Respondent's establishment has been the subject of drug activity under the scrutiny of the Panama City Police Department (PCPD) and petitioner (DABT) for several months. In October, 1983, Officer Metz, PCPD, based on information from a confidential informant that narcotics could be bought off the premises of the Frosted Mugs, participated in two controlled buys of marijuana outside the Respondent's building. On the first occasion, Metz bought a $50 bag of marijuana from Mixon who he observed coming from the Frosted Mugs' parking lot. The following day he bought half a pound of marijuana from Mixon who presented it out of a pickup truck in the same lot. Thereafter, on November 10, 1983, working in conjunction with the PCPD on a drug investigation, Mr. Russ and two PCPD officers entered the Frosted Mugs where they saw Mixon, who they believed was an employee of the Respondent. Respondent, however, indicates he and his wife are the only full-time employees, assisted on a part-time, pickup basis by Debra Roberson, only. In any case, since there is no allegation regarding dealing by Mixon, his status as an employee is not relevant and his presence goes only to the question of whether drug activity exists in the Respondent's bar. Russ again entered the Frosted Mugs on the evening of December 6, 1983, where he met and had a conversation with Debra Roberson, a part-time employee of the bar who was, on this evening, not on duty. Russ asked her if she knew where he could get a half ounce of buds (marijuana) to which she replied that she could get him a quarter ounce for $35. She also said she could get him speed at $1 a hit. Russ told her he wanted two hits of speed and the quarter ounce of marijuana. Then Roberson said she had to go somewhere outside the bar to get the merchandise, Russ told her he might want to buy some more later. Roberson left the bar and came back shortly thereafter through the back door. She called Russ to come outside with her, which he did, and she transferred the alleged marijuana and speed to him while they were riding around the block in the car. After the delivery and payment were made, they returned to the Frosted Mugs and Russ then left. The leafy substance was later tested by the Florida Department of Law Enforcement (DLE) laboratory and determined to be marijuana. The pills did not prove to be any prohibited drug. Russ came back to this bar a little over a week later, on December 15, 1983, a Thursday. When he entered this time, Debra was working that evening shucking oysters and waiting on customers, and he started talking with several of the patrons. During this time, Debra came up to him and asked if he wanted to buy a half ounce of marijuana for $35. He agreed to buy 3/4 of an ounce, whereupon Debra went to the phone and made a call. When she finished the call, she came to him and told him it would take 30 minutes for the marijuana to get there. About a half-hour later, Russ saw Debra talking with an individual, later identified as Mixon, after which she came to Russ and told him to follow her outside. He did and when they got outside, Debra took a foil package from the top of the air conditioning unit outside the building which she gave to Russ who gave her $98, all, he said, he had on him. Debra agreed to trust him for the balance. This substance, contained in three plastic bags inside the foil, was also tested by DLE and determined to be marijuana. While in the Frosted Mugs that evening, while he made his deal with Debra, Russ saw Respondent sitting on a bar stool near the center of the bar area. Russ was, at the time, at the rear end of the bar. The entire establishment, including the bar, pool table area, one customer table, and the rest rooms, is only 22 feet long and can only hold 40 people without being overcrowded. When Russ went back to the Frosted Mugs early in the evening of January 5, 1984, he again encountered Debra who was working behind the bar and who served him a beer. Russ asked her if she could get him 1/4 ounce of marijuana, but she said she had only rolled marijuana cigarettes for $2 each and asked him how many he wanted. Russ said he would take 20, whereupon Debra went to the center section of the bar where, from her place behind the bar, she talked with an unknown, tall, slim, white female and the Respondent, who was seated on a stool at the bar. Russ overheard Debra state that he wanted to buy the marijuana and saw her point to him, but he does not know if she was talking to Respondent or if he heard her. Respondent denies hearing any talk of marijuana at any time. If, as Respondent states, the bar was crowded in the evenings and noisy, absent a clear showing that Roberson was talking to him, and there is no such showing, it cannot be said he knew what she was saying. In any case, Debra went out the back door of the bar and, when she returned shortly thereafter, handed across the bar to Russ an open cigarette pack which contained the cigarettes, later tested and shown to be marijuana. For this, Russ paid Debra $40. During this entire period, Respondent was seated at the bar four to six seats or so away. During this period, another lady came over to Russ and asked about the pound of marijuana that Debra had said he bought. Respondent was near at the time ,but Russ does not know if he heard that comment, which, in fact, was not true. Officer Russ again went into the Frosted Mugs on the evening of January 9, 1984, and Debra was behind the bar when he entered. Only one other patron was there. Debra tried to sell him a stolen CB radio which, after price negotiation, he bought and took to the car. When he came back into the bar, he asked Debra if she could sell him a 1/4 ounce of marijuana. She said she did not have any at that time and, if she could get any, it would be rolled cigarettes like he bought previously. In the meantime, while Russ was there, he was introduced to Kim Henderson, Respondent's stepdaughter, who shortly thereafter asked Russ to buy her some Valium (diazepam). During the course of this conversation, Kim told him that Debra's brother would be bringing them to the bar later that evening, and, as predicted, he did. Russ agreed to buy them if Kim would share them with him. When Debra's brother came in, Russ gave Kim $25, which he saw Kim give to Debra. Almost immediately thereafter, Kim came back to where Russ was sitting and held out a brown medicine bottle from which she poured 12 blue pills, gave him six, and kept six for herself of which she took two. Shortly afterwards, as Russ was getting into his car outside the bar, Kim stopped him and told him Debra had the marijuana he had asked for. He went back into the bar, paid Debra $20, and left, coming back about an hour later. This time, Debra gave him nine rolled cigarettes in an open Winston cigarette pack which she pulled from under a load of coats. The cigarettes were subsequently tested and shown to contain marijuana. Tests of the pills referred to above revealed they were Valium. Russ came back to the Frosted Mugs shortly after 9:00 P.M. on January 13, 1984, and ordered a beer from Debra, who was tending bar at the time, and who asked him what he was looking for. He asked her what she had, and she replied she had marijuana cigarettes and Valium. Russ said he wanted 10 cigarettes and 2 Valium. Debra went down to the other end of the bar and immediately came back to Russ, handing him the 10 loose cigarettes. At this point, a female patron sitting near Russ laughed at the obvious awkwardness and difficulty of the transfer. Just a few minutes later, Debra came back to Russ and gave him two pills. Russ paid Debra $20 for the 10 cigarettes and the two pills and an additional $20 for her to buy herself some marijuana. She had always taken some of what she sold Russ and he wanted to keep his purchases this time to be used as evidence. Of the $40 he gave her, Debra put $20 in her pocket and $20 in the Frosted Mugs cash register. According to Respondent, this must have been for safekeeping because the register was not over that night, nor has it ever been over. He got none of that $20. The cigarettes Russ got from Debra that evening subsequently were tested out to be marijuana and the pills to be Valium. When Russ went back to the Frosted Mugs on January 17, 1984, he tried to buy 1/4 ounce of marijuana from Debra but she told him none was available. He then asked if she could get him two Valium, and she agreed. She asked him if she could borrow $50 from him, but Russ agreed to lend her only $15. About 20 minutes after Russ initially came in that night and after the prior discussion, Debra gave him 2 pills. He gave her $19 ($15 for the loan and $4 for the two pills) and said he would like to buy 10 more pills. She went to another section of the bar where Russ saw her talk to an unidentified white male. She came back and said she could not get any, but shortly thereafter another patron came up to Russ and asked him if he were a cop. When Russ said "no," the individual left, and a few minutes later Russ was approached by a male patron who said he had 21 Valium for sale. Russ agreed- the patron went to the restroom and returned, giving Russ a medical vial which contained 21 pills for which Russ paid $40. These pills and the two Russ got from Debra were tested and shown to be Valium. Debra later told Russ she had set up that sale. On January 19, 1984, Russ went back to the Frosted Mugs at 7:00 P.M. When he went in, he saw Debra, the bartender, Kim, and Mixon. Debra asked Russ if he wanted to buy some marijuana cigarettes, and he said he did. She said all she could get were 12, and he gave her the money for them. At this time, Debra brought out from behind the bar a plastic Baggie which contained cigarettes which she passed to Russ over the bar. These cigarettes were smaller than regular cigarettes and were twisted on each end. The Baggie also contained some loose leafy substance. From his training as a beverage agent, from his experience in this field over 15 years which included numerous drug cases, seminars, and continuing education in the identification of marijuana, Russ concluded that the vegetable matter in the plastic bag was marijuana. His training and experience, coupled with his detailed description of the substance and how it was packaged, leads clearly to a finding that the substance was, in fact, marijuana. Though Respondent was present in the bar at the time of the transfer, there is no evidence to show he knew of it. The bar is small and is considered crowded when more than 30 people are in it, as there were at least half the times Russ was there. There is a juke box with loud country music going most of the time and a pool table at which there is usually a game. By Russ's own admission, it is hard to carry on a conversation in there because of the noise and, as a result, it cannot be said that Respondent Barnes ever heard any of the conversations Russ had with Debra or anyone else about drugs. In that regard, however, Debra is not the only one who was interested in drugs. On one occasion, Russ bought a marijuana cigarette for a woman named Rose Lewis, who smoked it in front of him outside the bar while they discussed the pros and cons of the substance. He never saw anyone smoke marijuana inside the building and, in fact, those other patrons who approached him and asked him to go for a smoke of marijuana always wanted to go outside. Debra Roberson has been an acquaintance of Respondent all her life and is a friend of his sister. Her relationship with Respondent's establishment is informal. She is not paid in cash by Respondent for her services, but is allowed to eat and drink (she drinks only Pepsi-Cola) for free, and she keeps all the tips she gets. Some of the functions she performs are shucking oysters for customers, waiting on customers, serving from behind the bar, ringing up sales on the cash register, and answering the phone. Though this relationship may be less than an orthodox employer- employee relationship, it is, nonetheless sufficiently connected to establish the fact that she was, at the pertinent times, an employee of Respondent. Though Respondent has known Debra for years, he has never known her to use drugs. Though she admitted to using Valium prescribed for her by a doctor, no one ever told him of her actions of selling either marijuana or Valium and he had no reason to believe she was doing it. She would come by the bar just about every day (though she only worked Wednesday through the weekend), and he never saw her "high." Respondent's establishment is in a rough neighborhood of Panama City. He is in there every night to watch the crowd because of potential fights. Whenever he is there, someone is always talking to him, wanting to buy him a beer or to get him to buy them one. He does not recall ever shaking Russ's hand or discussing with him the Montego Bay bar, as Russ indicated, and does not recall ever hearing any comment about Russ buying a pound of marijuana. In her testimony, Debra denied ever telling Respondent of the sales of marijuana or Valium nor did she ever engage in any discussions about them in front of him. It was not well known that she or anyone else was dealing drugs out of the Frosted Mugs. Several regular patrons of the Frosted Mugs state there is no indication, whenever they are in there, that drugs are sold there. The place does not have that kind of reputation among its clientele. Most of these patrons, however, go in earlier in the day than the times described by Officer Russ. However, Respondent's next-door neighbor, Mr. Fowler, does go in often at night and he, too, shares the same thoughts about it. On balance, then, though there is no doubt Debra made the sales as alleged in the Notice to Show Cause, there is insufficient evidence to conclude that Respondent knew of her drug dealings.
Recommendation License suspension of six months and payment of a fine of $500.
The Issue At issue in this proceeding is whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is a state government licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Maureen Teresa Mobley, is a licensed real estate salesperson in the State of Florida, having been issued license number 0647773. On or about January 22, 1997, Respondent filed an application with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered item 9 by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On March 3, 1997, Respondent passed the salesperson examination and was issued license number 0647773. From March 15, 1997, through April 7, 1997, Respondent was an inactive salesperson. From April 8, 1997, through the present, Respondent has been an active salesperson associated with Betty K. Woolridge, an individual broker trading as B. K. Woolridge and Associates, currently in Tampa, Florida. Steve Pence, Investigative Supervisor for the Department, investigated Respondent’s criminal history. He discovered that Respondent had "a problem" with a worthless check charge. Mr. Pence obtained a Certificate of Disposition from the Clerk of the Circuit Court for Hillsborough County, Florida. The Certificate indicated that on November 4, 1992, Respondent entered a plea of nolo contendere to a misdemeanor charge of obtaining property with a worthless check, an offense that occurred on July 25, 1991. The Certificate further indicates that adjudication was withheld. After Mr. Pence concluded his investigation, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Florida Statutes" and sought to take disciplinary action against her license. According to the complaint, the disciplinary action sought . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. . . . At the hearing, Respondent testified that six or seven years ago, she wrote a check for $19.00 that was not cleared at her bank. She had moved during this period, and for some reason the notification did not reach her. When she found out the check had not been paid, she went directly to the intended payee and made the payment. A year later, she was stopped for a minor traffic violation and was arrested on an outstanding warrant for her arrest on the worthless check charge. At the time, she thought the matter had been taken care of and had no idea there was warrant out for her arrest. Respondent testified that she went before the judge, who noted that she had made good on the check more than a year before her arrest. Respondent admitted pleading no contest to the charge. However, Respondent’s understanding of "adjudication withheld" was that the judge had dismissed the charge, provided she pay the court costs. She never saw the Certificate of Disposition until Mr. Pence brought it to her attention several years later. Respondent's explanation for her failure to disclose the worthless check charge on her application is credited. It is found that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing her application. In so finding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter was reasonable, given the passage of time since the events in question, the minor nature of the underlying charge, and the fact that the judge acknowledged she had long since made good on the $19.00 check at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 30th day of March, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Leonard H. Johnson, Esquire Schrader, Johnson, Auvil and Brock, P.A. Post Office Box 2337 37837 Meridian Avenue Dade City, Florida 33526-2337 William Woodyard Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32302-1900
The Issue Has Mr. Guy demonstrated that he is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (1981)?
Findings Of Fact On March 23, 1981, Mr. Guy filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated May 19, 1981, the Board denied Mr. Guy's application. As stated by the letter, "the specific reasons for the Board's action is based on your answer to Question #6 of the licensing application and your criminal record according to the appropriate law enforcement agency." Question #6 of the application asks: 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Mr. Guy responded "Yes" he had. The question further requested the details in full concerning any arrests. In response, Mr. Guy answered: Arrested three (3)-times in Tampa, Florida, between 1972 and 1976 for D.W.I. (No convictions). Arrested in Detroit, Michigan in 1979 for intoxication and disorderly conduct - confined for detoxication, released upon paying fine. (See Attachment A) Attachment A which was by reference made a part of Mr. Guy's application was a police report from the City of Tampa, which Mr. Guy himself obtained in order to attach to his application. It stated: Date: 27 February 1981 TO WHOM IT MAY CONCERN: In reference to your ( ) counter check ( ) letter ( ) telephone call dated 27 February 81 regarding Milton Franklin Guy. Please be informed that our files were searched by ( ) fingerprints ( ) name only, and indicate that a person by the same name has the following record with this Department. WHITE/MALE DATE OF BIRTH: 21 Nov 41 21 Nov 49 4 Feb 74 Trespass After Warning $25 + CC 13 Mar 74 26 Mar 76 Deliver Amphetamines * 23 Dec 77 Disorderly Conduct * *NOTE: For all cases without a disposition, please contact the Clerk of the Hillsborough County Circuit Court. The Board of Real Estate has no knowledge about Mr. Guy's arrests, convictions, pardons or paroles except from the material supplied above by Mr. Guy. No evidence was introduced to show that Mr. Guy has a criminal record other than that which he disclosed on his application received by the Board of Real Estate on March 23, 1981. There is no direct evidence for the following supposition but it appears that Mr. Guy's denial by the Board was based upon a misunderstanding about how much material he submitted in support of his application. The police report, which is Mr. Guy's Attachment A, is identical to those reports which the Board's staff itself usually acquires independently from the applicant. If the Board thought it followed its routine in this instance, it is understandable that it could believe Mr. Guy was not forthright in answering Question #6. That was not the case here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Real Estate enter a Final Order finding Petitioner qualified pursuant to Section 475.17(1) Florida Statutes (1981) to take the licensing examination provided for in Section 475.17(5), Florida Statutes (1981), to be licensed as a real estate salesperson in the State of Florida. DONE and RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1982.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Evers Aurubin, is a licensed real estate salesperson in the State of Florida, having been issued license number 0650984. On February 24, 1997, Respondent filed an application (dated February 12, 1997) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent responded to the question by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On June 9, 1997, Respondent passed the salesperson examination and he was issued license number 0650984 as an inactive salesperson. From July 17, 1997, through the date of the hearing, Respondent has been an active salesperson associated with The Keyes Company, a broker corporation located at One Southeast Third Avenue, Miami, Florida. Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department discovered that Respondent had been involved in an incident that was not revealed on his application. According to the Certified Record Search (Petitioner's Exhibit 1), attested to by the Clerk of Courts, Dade County, Florida, their records revealed that Respondent was arrested on February 21, 1991, for "obstructing street," convicted on February 22, 1991, and sentenced to and credited with time served (overnight detention). No further record existed concerning the nature of the charge since, according to the clerk's certification "pursuant to Florida Rules of Criminal Procedure 2.075, Retention of Court Records, the requirement for retaining misdemeanor cases under this rule is 5 years, therefore the file is unavailable." Consequently, there is no record evidence of the specific provision of law Respondent was convicted of violating and, therefore, no showing that the offense was criminal and, if so, the degree of felony or misdemeanor. Upon discovery of such information, the Department apparently apprised Respondent of its discovery and requested an explanation. Respondent addressed the Department's concerns by letter of July 16, 1998, as follows: I,m writting (sic) this letter to explain the incident of my arrest and the reason I answer not to the question on my application for the real estate license. There in the Amocco (sic) Gas Station on 27th Avenue close to 135th St., I gas-up there a few time. On the night of 2-21-91 in my way home from work, I stop to gas-up while doing so I noticed a young lady at the stop sign, but previously I thought that I saw her inside the gas station. By curiosity I drove by to talk to her, I asked her how are you doing just to have a conversation with her. She approached and ask me do I have $20.00 I said I have $9.00 to my surprise she said can she go with me I laugh then she walk toward the back of the car. All the doors of the car were locked so I did not have any intention of letting her in. I put my head down to look for the stack (sic) shift because my car was not automatic so I can put it on first gear to go, when I raised my head I saw an unmarked car pull in front of me vertically at the same time two to three Police car pull-up behind me, they ordered me out and arrested me, they took me to the Police Station to take me to jail that,s there (sic) I find out she was an under cover cop or working for the Police. I ask one of the officer when will I get out he answer probably the next morning because this is a minor offense. In the morning they took me to the court house the officer there told us, those of us that are there for the first time it is better to plead guilty, if we plead no contest or any other way we will have to come back to the court spend more time since this is a very minor case, plead guilty and we will be out the same day. I was working did not have time to come back, so when the Judge called me and asked me how do I plea I said guilty then they let me out the next (sic) morning. The cause of the arrest remain unclear to me. Because I find out that they arrested me for mentioning money, but I did not enter to any agreement what so ever with the lady and I did not mention anything about sex. Since it was a very minor case practically nothing I never pay any attention to it, that,s why I answer no to the question on the applycation (sic). I regret the incident very deeply and I will not let it happen to me ever again. Thereafter, on October 21, 1998, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid incident on his application, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." (Count I), and that "Respondent has failed to disclose in his real estate license application the information required under Rule 61J2- 2.027(2), Fla. Admin. Code, and therefore, in violation of [Section] 475.25(1)(e), Fla. Stat." (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . [T]he penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 1 Consistent with the explanation he offered the Department in his letter of July 16, 1998, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his understanding of the significance of the charge. According to Respondent, who was not represented in the matter, it was his understanding that the charge ("obstructing street") was a non-criminal matter; that he was unfamiliar with the process, as well as scared; that he pled guilty to the charge so he would not have to return; and thereafter was released with credit for time served (an evening of incarceration). There was no other penalty imposed for the incident (no fine or probation), and Respondent has never been charged with any other offense. Here, Respondent's explanation for his failure to disclose the information regarding his arrest and conviction is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive those who would be reviewing his application. In so concluding, it is observed that Respondent's testimony was candid, the nature of the incident was not shown to be significant, and Respondent's understanding of the matter as non-criminal was, given the nature of the charge and Respondent's lack of experience with the judicial system, reasonable. Moreover, as heretofore noted, the court record fails to disclose, and the Department offered no proof to demonstrate, the provision of law violated or its significance.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1999.
