The Issue The issue in this case is whether the City's comprehensive plan is "in compliance" under the Local Government Comprehensive Planning and Land Development Regulation Act. Specifically, the Intervenors allege that the City gave legally insufficient notice of the public hearings required for adoption of its comprehensive plan.
Findings Of Fact The City of Bartow scheduled a public hearing on November 5, 1990, to consider a proposed comprehensive plan for transmittal to the Department of Community Affairs (the DCA). The City caused an advertisement entitled NOTICE OF PUBLIC HEARING CITY OF BARTOW COMPREHENSIVE PLAN NOTICE OF CHANGE OF LAND USE to be published in the Polk County Democrat, on October 25, 1990. The advertisement gave notice that "Future Land Use" would be discussed, and it invited "all property owners and interested citizens" to "attend and provide written and/or verbal comments on the proposed plan." It indicated that copies of the plan were available for public inspection at City Hall during the week prior to the hearing. The advertisement also included a map of the entire City that did not highlight any particular part of the City. The plan available for public inspection at the November 5, 1990, public hearing, and during the week preceding it, included a Future Land Use Map (FLUM). The map was based on information that was in part obsolete. In the case of approximately six parcels of land, it portrayed future land use that was inconsistent with existing land use. For example, it showed a parcel on the southwest corner of U.S. Highway 17 and Georgia Street as part low density residential when, in fact, the entire parcel was being used for commercial purposes. A Food Lion shopping center occupied the entire site, the Food Lion was planning a grand opening for the end of the month. At least one of the Intervenors, who are owners of residential property in the vicinity of the new Food Lion shopping center who opposed commercial development in the area, including the Food Lion shopping center, viewed the FLUM during the public hearing on November 5, 1990, and was satisfied with what it portrayed. Notwithstanding the inconsistency between parts of the FLUM and some of the existing uses in the City, the City Commission voted to transmit the proposed plan to the DCA. On or about February 22, 1991, the DCA sent its Objections, Recommendations and Comments (ORC) to the City. The FLUM in the City's proposed plan was not among the issues contained in the ORC. At some point in time, not clear in the record, during the process of addressing the issues contained in the ORC, the City also began the process of correcting the inconsistencies between the FLUM and existing land uses. The six corrections included changing the entire Food Lion parcel at the corner of U.S. Highway 17 and Georgia Street from low density residential to highway commercial. On July 10, 1991, the City of Bartow Zoning Commission (Zoning) met for final consideration of changes to the proposed comprehensive plan designed to address both the issues contained in the ORC and the inconsistencies between the FLUM and existing land uses. At the time of the Zoning meeting, the new FLUM was not yet available. However, among other things, Zoning generally discussed the need to conform the FLUM to existing uses, and it approved the proposed plan, as amended, with the understanding that the corrected FLUM would be included in the amended proposed plan to be considered for adoption by the City, through its Board of Commissioners (the Commission). The City scheduled a public hearing on August 5, 1991, for consideration and adoption of the proposed comprehensive plan, as amended. The City caused an advertisement entitled NOTICE OF INTENT TO CHANGE OF LAND USE AND A PUBLIC HEARING ON THE ADOPTION OF THE CITY OF BARTOW COMPREHENSIVE PLAN to be published in the Polk County Democrat, on July 18, and again on July 22, 1991. The advertisement gave notice that the City proposed to "change, by adopting a new City of Bartow Comprehensive Plan, the use of land within the incorporated area of the City of Bartow as shown on the map in this advertisement." It included a map of the entire City that did not highlight any particular part of the City. The advertisement also gave notice that the proposed plan included a "Future Land Use" element. "Interested persons" were invited to appear at the hearing and be heard regarding the adoption of the [plan]." The advertisement also stated that both the proposed plan and the DCA's ORC were available for public inspection at the City Hall. In fact, the City's planning consultant, the Central Florida Regional Planning Council, did not send the corrected FLUM to the City until the end of July, 1991, and it did not arrive and was not available for inspection until approximately August 1, 1991. However, no one asked to see the proposed plan, as amended, between July 18 and August 5, 1991. The City Commission met as scheduled, held the public hearing, and voted to adopt the proposed comprehensive plan, as amended. None of the Intervenors appeared at the public hearing. On August 8, 1991, the City officially adopted its comprehensive plan. The public participation procedures contained in the City's adopted comprehensive plan require the local planning agency (i.e., in Bartow, the Zoning Commission) to hold "public workshops or meetings to solicit the views, opinions, ideas, and concerns of the public . . .." In addition, they provide that the "local planning agency will hold a minimum of one (1) public hearing for the purpose of receiving public comments prior to recommending the adoption of the comprehensive plan" and that the City Commission "will hold a minimum of two (2) public hearings prior to the adoption of the comprehensive plan " The adopted procedures require the publication of notice of the public workshops and hearings by advertisement in a local newspaper of general circulation and by posting at the City Hall. Provision is made for the receipt and recording of written and verbal public comment. Finally, the procedures provide: "At such a time as it become[s] available, the Comprehensive Plan will be available for public inspection at City Hall, during normal business hours." (Emphasis added.) On or about December 19, 1991, the DCA determined, for reasons unrelated to the FLUM or to the notices of the public hearings or to the extent of public participation in the plan adoption process, that the City of Bartow comprehensive plan was not "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991). On or about June 16, 1993, lengthy compliance agreement negotiations between the DCA and the City culminated in the execution of a Stipulated Settlement Agreement. On or about August 2, 1993, the City adopted remedial amendments in accordance with the compliance agreement. The DCA determined that the City plan, as amended, was "in compliance" and, on or about September 23, 1993, issued a cumulative notice of intent under Section 163.3184(16)(e), Fla. Stat. (1993). On October 7, 1993, the DCA filed a Motion to Dismiss Formal Proceedings. Primarily because the City failed to serve the Intervenors with a copy of the remedial amendments within ten working days of their adoption, as required by Section 163.3184(16)(d), Fla. Stat. (1993), an Order Denying Motion to Dismiss was entered on December 15, 1993, and the final hearing in this case was held on the issues raised in the Petition to Intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order denying the Petition to Intervene in this case and determining that the City of Bartow comprehensive plan is "in compliance." RECOMMENDED this 19th day of April, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 19th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0011GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Intervenors' Proposed Findings of Fact. Argument; subordinate and unnecessary. Accepted but subordinate and unnecessary. 3.-5. Accepted and incorporated. Rejected as contrary to facts found. As the notices indicated, the City proposed to adopt its initial comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act. Accordingly, the entire City was subject to the proposal. The changes in the FLUM were to correct errors in the proposed plan, as transmitted to the DCA. Accepted and incorporated. DCA and City Proposed Findings of Fact. 1.-2. Accepted but largely subordinate and unnecessary. 3. Accepted and incorporated. 4.-5. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as being conclusion of law. Except that it was the Polk County Democrat, the rest is accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as being conclusion of law. Except that it was the Polk County Democrat, the rest is accepted and incorporated. Accepted and incorporated. 13.-16. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as being argument and as being subordinate and unnecessary. The rest is accepted and incorporated. Rejected as contrary to facts found. (The videotape of the Zoning Commission meeting on July 10, 1991, indicates that the corrected FLUM had not yet been received. See City Exhibit 6. The corrected FLUM was mailed the end of July but was not received until August 1, 1991.) Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as being conclusion of law. Last sentence, accepted but subordinate and unnecessary. The rest is accepted and incorporated. 21.-22. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mark N. Miller, Esquire Hahn, Breathitt, Watson & Miller, P.A. Post Office Box 38 Lakeland, Florida 33802-0038 George Dunlap, Esquire City Attorney Post Office Box 1069 Bartow, Florida 33830 Susan W. Fox, Esquire MacFarlane Ferguson Post Office Box 1531 Tampa, Florida 33601 David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor Attn: Kelly Tucker Room 426 311 Carlton Building Tallahassee, Florida 32301
The Issue Whether the Respondent committed the following acts on Ellenton Shoney's construction project: Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting. Obtaining a permit for construction in which he took no part. Using his license to illegally associate with an unlicensed contractor.
Findings Of Fact At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. Accepted. See HO number 4. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15. Accept the first sentence. Reject the second sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence. Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. See HO number 2, number 5, number 8, number 9, number 10. Accepted. See HO number 11 - number 15. Rejected. Irrelevant. Accepted. See HO number 11 and number 12. Accepted. Accept that Respondent was unaware of an entity known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Jack McCray, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers? compensation, as alleged in the Stop-Work Order and Third Amended Order of Penalty Assessment, and if so, what penalty is appropriate.
Findings Of Fact The Department of Financial Services (Petitioner or the Department) is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for their employees and corporate officers. Mr. Donald Hurst is a workers? compensation compliance investigator for the Department of Financial Services, Division of Workers? Compensation. He has been employed in that capacity for about nine years and has conducted approximately 7,000 investigations. On December 20, 2007, Mr. Sherman Yarbrough registered the fictitious name of Custom Granite Kitchens and Baths (CGKB) with the Florida Department of State, showing the mailing address for the business as 1210 West 15th Street, Panama City, Florida. Department of State records show Mr. Yarbrough as the owner of the fictitious name, and show that it was in effect until December 31, 2012. Payroll Services, Inc. (Payroll Services), is a broker for employee leasing companies. Ms. Betty Jo Laws is the office manager. Ms. Laws performs bookkeeping duties, and, at all times relevant here, sold employee leasing services to employers. When clients came in seeking employee leasing services, she would take down all of the information, find an appropriate leasing company from among the several that Payroll Services represented, and assist the client in completing all of the required paperwork. American Staff Management (ASM), a Florida corporation engaged in employee leasing, assigns its employees to various clients as “co-employers.” ASM provides those employees with workers? compensation coverage and payroll and tax services, while allocating to the client extensive direction and control over the day-to-day work activities of the assigned employees. On or about October 6, 2011, CGKB entered into a Service Agreement through Payroll Services under which ASM would provide it employee leasing services. Under the agreement, ASM would co-employ certain employees and provide them with workers? compensation and other benefits of employment. ASM would issue the payroll checks and be responsible for meeting tax accounting and reporting requirements related to the employment. The agreement provided that ASM would not be considered the employer for any individual until ASM?s new hire paperwork, an I-9 form (if required), and a W-4 tax withholding form were received by ASM. It further provided that ASM would not be considered the employer until CGKB had been notified by ASM that the employee had been hired by ASM as an assigned employee. CGKB would pay ASM the regular rate of pay for the employees along with an additional fee of 19.68 percent of the payroll for these services. In December of 2011, Mr. Charles Burchell, representing SSI Management (SSI), came down from Brentwood, Tennessee, to look at the VUE, a condominium that SSI was constructing at 2303 Highway 98, Mexico Beach, Florida. Mr. Yarbrough walked onto the site, gave Mr. Burchell a card from CGKB, and told Mr. Burchell that he did tile and cabinet work. Sometime in the middle of June 2012, SSI entered into a contract with CGKB for construction work at the VUE. Mr. Burchell?s testimony indicated that he was not sure if SSI?s contract was with the LLC or CGKB: Q: So in the course of your dealings with Mr. Yarbrough, did he ever –- do you remember what he said about the LLC? A: No. Q: Do you recall him saying anything about the LLC? A: You know, I just know when we wrote checks, we wrote it to his personal name. I don?t know about the LLC. Q: So you?re not sure? A: No, I?m not sure. Q: Okay. A: I just know his business card said Custom Granite Kitchens and Baths. I don?t have any idea, you know, the status of the company or anything else. Mr. Burchell testified that he asked Mr. Yarbrough for proof of insurance when he started the job and several times afterwards, but did not receive any information from him. Mr. Burchell testified that SSI distributed its first check for the Mexico Beach project, made out to Sherman Yarbrough, on or about June 22, 2012. The contract for the construction work had to have been entered into sometime before this, and Custom Granite Kitchens and Baths, LLC, was not yet in existence. Custom Granite Kitchens and Baths, LLC, was created on June 29, 2012. The registered agent was listed as Mr. Sherman Yarbrough, 1210 West 15th Street, Panama City, Florida. Mr. Yarbrough testified that he was aware his ownership of the fictional name of Custom Granite Kitchens and Baths was due to expire at the end of the year. He testified that he was planning to sell the company and so decided not to renew the fictional name but instead create an LLC and convert the existing business into that. Mr. Sherman Yarbrough is the sole owner of Custom Granite Kitchens and Baths, LLC. Mr. Yarbrough is a managing member of the LLC and is the party in actual control of the LLC. On July 3, 2012, Mr. Yarbrough obtained a notice from the Internal Revenue Service assigning the LLC an Employer Identification Number. On this same date, Mr. Calvin Johnson filled out the following employment paperwork: a W-4 form for tax withholding allowances; portions of the Department of Homeland Security?s Employment Eligibility I-9 form; an ASM Employee Enrollment Paperwork form, and an ASM Employment Agreement. The bottom portion of the I-9 form indicated the “Business or Organization Name” as “Custom Granite Kitchens and Baths, LLC,” but was not signed in the space provided for the signature of an authorized representative of the employer. At the bottom of the ASM Employee Enrollment Paperwork form, in a box indicating that it was “To be completed by Supervisor,” the worksite employer was identified as “Custom Granite Kitchens and Baths, LLC.” Mr. Johnson began construction work at the Mexico Beach property on July 3, 2012, working alongside employees of CGKB. Mr. Johnson was paid on Fridays in cash for his work by Mr. Yarbrough. Beginning with an ASM check dated July 24, 2012, he was paid by check. On July 11, 2012, Mr. Nicholas Tucker, who had worked for Mr. Yarbrough previously, started to work on the Mexico Beach property. On his ASM Employee Enrollment Paperwork form, the “Worksite Employer” was listed as “Custom Granite Kitchens and Baths.” Mr. Tucker signed the ASM Employment Agreement, the W-4 form, and the I-9 form on July 20, 2012. The bottom portion of the I-9 form, which had a space for “Business or Organization Name,” was left incomplete. On or about July 14, Mr. Yarbrough told Ms. Laws at Payroll Services that Ms. Marion Tucker would be bringing Payroll Services two new employment applications. Ms. Tucker worked for Mr. Yarbrough at CGKB as the secretary, and was also listed as a managing member of the new LLC. On or about July 17, 2012, Mr. Michael Chapman began work at the Mexico Beach property. On the ASM Employee Enrollment Paperwork form, the “Worksite Employer” was listed as “Custom Granite Kitchens and Baths.” Mr. Tucker signed the ASM Employment Agreement, the W-4 form, and the I-9 form on July 18, 2012. The bottom portion of the I-9 form, which had a space for “Business or Organization Name,” was left incomplete. On July 20, 2012, Mr. Hurst conducted a site visit at 2303 Highway 98, Mexico Beach, Florida. He observed a worker cutting tile in the parking area. The worker identified himself as Mr. Eulalio Galindo and he produced a business card for CGKB. The card indicated that Mr. Sherman Yarbrough was the owner. Mr. Galindo indicated the employees were paid through an employee leasing company, but he did not know the name of it. Mr. Hurst interviewed three other workers at the worksite. Mr. Charles Rustad and Mr. Nick Tucker were sanding down drywall. Mr. Rustad said he had been working for Mr. Yarbrough for about 10 months. Mr. Tucker said he had been working about a week. In another room, Mr. Chapman was painting. He said he had been working for Mr. Yarbrough for only about three days. Mr. Johnson was also on the worksite on July 20, 2012, doing tile edging in a bathroom. He and Mr. Hurst did not meet, and Mr. Johnson only learned of Mr. Hurst?s visit later, when he came down for another load of tiles. Mr. Johnson, Mr. Tucker, and Mr. Chapman were engaged in construction activity at the Mexico Beach property. Mr. Hurst checked the Department of State?s website for information on Custom Granite Kitchens and Baths, and when he did his search he came up with Custom Granite Kitchens and Baths, LLC. It showed that the LLC had been an active entity since June 29, 2012, and listed Mr. Yarbrough as the registered agent. Mr. Hurst completed a Field Interview Worksheet, on which he listed the time as 11:30 a.m. on July 20. He listed the business name as Custom Granite Kitchens and Baths, LLC, and wrote down the names and contact information for the four workers with whom he had talked. Mr. Hurst checked the Coverage and Compliance Automated System (CCAS) maintained by the Department to see if an insurance company had provided information regarding workers? compensation insurance. CCAS did not show any workers? compensation coverage for the LLC. CCAS also did not show any exemptions for the LLC on file. On July 20, 2012, Mr. Yarbrough went to Payroll Services and told Ms. Laws that he wanted to obtain workers? compensation coverage for the LLC. He provided her with the notice from the Internal Revenue Service dated July 3, 2012, assigning the LLC an Employer Identification Number. Mr. Yarbrough watched Ms. Laws complete a Service Agreement between ASM and the LLC, which Mr. Yarbrough then signed and dated. Based on information provided to her by Mr. Yarbrough and a printout of information he gave her from the “Sunbiz” web site, Ms. Laws also completed the Payroll Services Client Information Form for the LLC, indicating the “desired effective date” of coverage to be July 20, 2012. Mr. Yarbrough gave Ms. Laws the employment papers for Mr. Johnson to submit to ASM as an employee of the LLC. Although Mr. Yarbrough maintained he did not take action on July 20, 2012, to obtain workers? compensation for Mr. Johnson on behalf of the LLC, Mr. Yarbrough was evasive and nonresponsive in his testimony, and generally not at all credible. Mr. Yarbrough also gave Ms. Laws the employment application papers that had been completed by Mr. Johnson. Mr. Yarbrough said that “Marion” (Ms. Tucker) would be bringing a couple more new employment applications later. After Mr. Yarbrough left, Ms. Laws noted that there was no signature of employer in the bottom portion of the I-9 form, so she signed Mr. Johnson?s name to it. Mr. Yarbrough did not take any steps on June 20, 2012, to transfer any of the four people who were already covered employees of CGKB to the new LLC. Mr. Hurst called Ms. Tucker and asked about workers? compensation coverage. Ms. Tucker referred him to Ms. Laws. When Mr. Hurst contacted Ms. Laws, she explained that Payroll Services was a broker for leasing companies, and that the leasing company for CGKB was ASM. When Mr. Hurst asked about any new employees, Ms. Laws stated she had a new application for Mr. Johnson. She provided Mr. Johnson?s documentation to Mr. Hurst by e-mail. She told Mr. Hurst that it was her understanding that Mr. Yarbrough was transferring the company over to the LLC. Mr. Hurst then called ASM. He was told that ASM provided no coverage to the LLC, but covered four employees -- Mr. Yarbrough, Ms. Tucker, Mr. Rustad, and Mr. Galindo –- under Sherman Yarbrough as employer. Mr. Hurst was told that Mr. Tucker and Mr. Chapman were not covered by ASM. Based upon the information provided to him that Mr. Tucker and Mr. Chapman had no coverage, Mr. Hurst contacted his supervisor. She authorized issuance of a Stop-Work Order and an Order of Penalty Assessment, which were served on the LLC on July 20, 2012. No Stop-Work Order or Order of Penalty Assessment was served on CGKB. The LLC also received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on July 20, 2012. The Department requested business records from June 29, 2012 (the date the LLC was made active with the Department of State), until July 20, 2012. Mr. Hurst testified that he issued the Stop-Work Order to Custom Granite Kitchens and Baths, LLC, instead of Sherman Yarbrough because, in addition to the information from Ms. Laws, “the business card I was given stated Custom Granite Kitchens and Baths, and I verified on the corporate website that Custom Granite Kitchens and Baths, LLC, was an active company.” Department of State records also indicated that “Custom Granite Kitchens and Baths” was registered as a fictitious name owned by Mr. Yarbrough, but there was no evidence as to whether Mr. Hurst was aware of that fact at the time. Shortly after Mr. Yarbrough left the Payroll Services office on July 20, 2012, Ms. Tucker delivered the employment documents of Mr. Tucker and Mr. Chapman to Ms. Laws. Ms. Laws filled in the bottom portion of Mr. Tucker?s I-9 form. She indicated the “Business or Organization Name” as “Custom Granite Kitchens and Baths, LLC, Panama City.” Ms. Laws testified that she did this based upon the statements of Mr. Yarbrough earlier that day that he was transferring CGKB into the LLC. She stated that Mr. Yarbrough did not specifically tell her that the LLC was Mr. Tucker?s employer and that this was an assumption on her part. Ms. Laws did not have the Florida driver?s license information and social security number filled out on Mr. Tucker?s I-9 form, and so his paperwork was not immediately faxed to ASM. Ms. Tucker gave that information to Ms. Laws the following Monday, and Ms. Laws then completed the form and faxed it to ASM on July 23, 2012. Ms. Laws also filled in the bottom portion of Mr. Chapman?s I-9 form. She filled in the “Business or Organization Name” information with “Custom Granite Kitchens and Baths, Panama City.” Ms. Laws did not explain why she did not put the LLC as the business on Mr. Chapman?s form as she had on Mr. Tucker?s. Mr. Chapman?s forms were faxed to ASM shortly after Ms. Tucker dropped them off. On July 23, 2012, Mr. Hurst called Ms. Laws to see if she had received any new employee paperwork. She stated that she had, and sent him the documentation. ASM later confirmed to Mr. Hurst that they had received the paperwork for Mr. Tucker and Mr. Chapman, and that they were now covered as employees. The employee list from ASM dated July 23, 2012, shows Mr. Johnson, Mr. Tucker, and Mr. Chapman all listed as employees of Sherman Yarbrough, all with a “Hire Date” of July 23, 2012. Mr. Galindo, Mr. Rustad, Ms. Tucker, and Mr. Yarbrough also continued to be shown as employees of Sherman Yarbrough. In checks prepared by ASM on Monday, July 23, 2012, and dated July 24, 2012, Mr. Johnson was paid for 36 hours of work, Mr. Tucker was paid for 27 hours of work, and Mr. Chapman was paid for 20 hours of work. As the president of ASM, Mr. James Moran, testified, ASM would pay employees retroactive wages to make sure the taxes were accounted for properly. He attributed the work hours to days prior to July 23, 2012, and testified that because of the number of hours, it was reasonable to assume that these three men were working on July 20, 2012, or before. Mr. Moran testified that he received payment for ASM?s services for these hours from Mr. Yarbrough, and that insurance premiums were paid to the workers? compensation carrier, Castle Point, for this period of time. He also testified, however, that all three men were only accepted as ASM employees on July 23, 2012. CGKB did not meet its responsibility to secure workers? compensation for Mr. Tucker and Mr. Chapman until July 23, 2012. The LLC did not meet its responsibility to secure workers? compensation for Mr. Johnson until July 23, 2012. On July 26, 2012, Mr. Yarbrough signed the Election of Proceeding Form on behalf of the LLC, stating that there was a dispute of the material facts alleged in the Stop-Work Order. Respondent did not respond to the Request for Business Records for Penalty Assessment Calculation. Mr. Hurst referred the file on the LLC to the Department?s Penalty Audit Section so that the penalty could be imputed. A letter on ASM letterhead dated August 3, 2012, and addressed to Mr. Michael Chapman indicated that ASM had been notified that Mr. Chapman was “no longer employed at Sherman Yarbrough as of 7/17/2012.” This was the same date that had been indicated as the “Original Date of Hire” on Mr. Chapman?s ASM Employee Enrollment Paperwork form. There was no testimony explaining how he could have been terminated on a date prior to his acceptance as an ASM employee on July 23, 2012, or the reasons for his termination. Mr. Yarbrough submitted the Election of Proceeding form and a letter to the Department stating: The company in question, Custom Granite Kitchens and Baths, LLC has no employees. This company was just founded and has no activity of any kind in the State of Florida. This matter has been a mistake. The Election form and letter were received by the Department on August 9, 2012. Respondent was served with an Amended Order of Penalty Assessment from the Department on August 9, 2013. Mr. Yarbrough filed another Election of Proceeding dated August 10, 2012, again requesting a formal hearing, which was received on August 16, 2012, by the Department. Sometime in August, Mr. Burchell asked Mr. Yarbrough not to come back to the Mexico Beach property and SSI hired someone else to finish the job. Mr. Burchell testified that he believed Mr. Yarbrough and his company were not large enough to handle a project of the size SSI was pursuing. He said the termination had to do with timeliness more than any failure to obtain workers? compensation coverage. A check dated August 17, 2012, made out to the order of Sherman Yarbrough and drawn on the account of SSI-MDI Mexico Beach, LLC, was received as final payment for the construction work CGKB performed on the Mexico Beach property. The name and address shown on the check were Sherman Yarbrough, Custom Granite Kitchens and Baths, 1210 West 15th Street, Panama City, Florida. In a letter dated August 24, 2012, ASM notified Mr. Yarbrough that the agreement between ASM and CGKB was terminated as of August 7, 2012, “for failure to report, run, and/or pick up payroll.” It went on to say that all certificates of insurance issued on CGKB?s behalf had been cancelled. Separate letters on ASM letterhead with the same date and addressed to Mr. Nick Tucker and Ms. Marion Tucker indicate that the “leasing agreement between American Staff Management IV, Inc., (ASM) and Sherman Yarbrough dba Custom Granite Kitchens has ended.” The letter goes on to explain that the recipients of the letter were no longer covered under ASM?s workers? compensation policy. On October 26, 2012, Mr. Yarbrough and Mr. Johnson entered into a Lease/Purchase Agreement. Mr. Yarbrough leased Mr. Johnson “Custom Granite Kitchens and Baths dba and Custom Granite Kitchens and Baths, LLC.” The Agreement provided for the transfer of equipment and supplies, as well as arrangements for Mr. Johnson to pay Mr. Yarbrough $300.00 per job, with a minimum of six jobs per month, for a period of 36 months. After this lease period of three years, Mr. Johnson would become the owner. The agreement itemized several items of equipment and stated, “Sherman Yarbrough will maintain the Cabinet Division of Custom Granite Kitchens & Baths, LLC.” It also provided, “Sherman Yarbrough will continue to sell granite for the Granite Division during promotion of the Cabinet Division at no commission other than the $300.00 per job as set forth in this agreement.” Respondent received the Second Amended Order of Penalty Assessment from the Department on February 26, 2013, assessing a penalty for violation of the Stop-Work Order. Mr. Hurst had concluded from the Lease/Purchase Agreement that the LLC was in violation of the order because it conducted several activities. Mr. Hurst testified, “It wrote the contract up, he signed the contract, and it also stated in the contract that the division of the –- the Granite Division and the Cabinet Division of Custom Granite Kitchens and Baths, LLC, was active and was continuing to remain active.” The Department referred this matter to the Division of Administrative Hearings on March 5, 2013, about seven and a half months after the Stop-Work Order was served. After taking a telephonic deposition of Mr. Johnson, the Department determined that he had been employed by the LLC and did not have workers? compensation coverage. The Department prepared a Third Amended Order of Penalty Assessment. Respondent was provided with a copy of the proposed Third Amended Order of Penalty Assessment on June 5, 2013. None of the employees listed in the penalty worksheets included with any of the Orders of Penalty Assessment can be classified as independent contractors, as defined in section 440.02, Florida Statutes. Mr. Johnson was an employee of the LLC on July 20, 2012, and before. The Department did not prove that Mr. Chapman or Mr. Tucker were employees of the LLC at any time between June 29, 2012, and July 20, 2012. Evidence showed that Mr. Chapman and Mr. Tucker were instead employees of CGKB on July 20, 2012, and before. The LLC did not secure workers? compensation coverage for Mr. Johnson before July 23, 2012. The LLC did not engage in business operations on October 26, 2012. The parties stipulated that the Department assigned the appropriate class code and manual rates from the National Council on Compensation Insurance, Inc., SCOPES Manual. The parties stipulated that if the charged violations were proven, the penalty amounts calculated by Petitioner in the Penalty Assessments were accurate.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers? Compensation, enter a final order determining that Custom Granite Kitchens and Baths, LLC, violated the requirement in chapter 440, Florida Statutes, that it secure workers' compensation coverage for Mr. Calvin Johnson, and imposing upon it a total penalty assessment of $1,000.00. DONE AND ENTERED this 23rd day of July, 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 23rd day of July, 2013.
The Issue Whether Respondent operated a public food-service establishment without a valid license and, if so, the appropriate sanctions.
Findings Of Fact At all times material hereto, Respondent operated a mobile food-dispensing vehicle in Jacksonville, Florida. Respondent held License No. 2651331. A mobile food-dispensing vehicle is a “public food service establishment” as that term is defined in section 509.013, Florida Statutes. On January 9, 2012, Michael Byrd conducted an inspection of Respondent?s mobile food-dispensing vehicle at its commissary location at 2356 West Beaver Street, Jacksonville, Florida. During the inspection, Mr. Byrd noted that Respondent?s license, which was displayed as required, had expired on June 1, 2011. Mr. Byrd entered the violation of the Petitioner?s licensing requirement on an Inspection Report, which report was thereupon signed by Oswald Higgs on behalf of Respondent. The report established March 10, 2012, as the date for a callback inspection, by which time the violation was to be corrected. On April 20, 2012, Mr. Byrd performed the call back inspection. Respondent failed to produce a current license for the mobile food-dispensing vehicle. Petitioner proved, by clear and convincing evidence, that Respondent was operating a public food-service establishment on an expired license as alleged in the Administrative Complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Ozamori Mobile Kitchen, violated section 509.241(1), Florida Statutes, and Florida Administrative Code Rule 61C-1.002(6); and Imposing an administrative penalty against Respondent, Ozamori Mobile Kitchen, in the amount of $500, payable to Petitioner within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of January, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Oswald Higgs Ozamori Mobile Kitchen 2560 Automobile Drive Jacksonville, Florida 32209 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
Recommendation Based upon the foregoing Agreed Upon "Facts" and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order letting stand the City's denial of the RTC's request for an additional two-year extension of the buildout date of the Bakery Centre. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1993.
Conclusions On October 7, 2011, an Administrative Law Judge (“ALI ”) of the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction to the Department.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9. 030()(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES, YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-168 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this Laas of March 2012. By U.S. Mail: James E. White, Esq. Florida Bar No. 679461 WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. Attorneys for Respondent 200 E. Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison St., MSC 110 Tallahassee, Florida 32399-4128
The Issue The issue in this case is whether, in deciding to award a contract for comprehensive re-entry services to be provided at the Baker Re-Entry Center (”Baker”), Respondent, Department of Corrections (the “Department” or “DOC”), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary, capricious, or contrary to competition.
Findings Of Fact In 2014, the Florida Legislature authorized DOC to open two 432-bed substance abuse treatment, transition and vocational training centers (“Re-Entry Centers”) by way of the 2014-2015 General Appropriations Act. The Department was also authorized, pursuant thereto, to issue a competitive solicitation for comprehensive program services for the inmates at the Re-Entry Centers. On June 10, 2014, the Department issued the ITN entitled, “Comprehensive Re-Entry Services at Everglades and Baker Re-Entry Centers.” The stated purpose of the ITN was to select “qualified vendors to provide comprehensive criminal justice re-entry services which include substance abuse services, academic programs, vocational programs, case management, chaplaincy and other program services to a medium to high-risk inmate population” at the Baker and Everglades Re-Entry Centers. On July 10, 2014, DOC issued Addendum #1 to the ITN which made changes to the original specifications in the ITN in response to some vendor inquiries. For example, in response to a vendor inquiry about the mental health classifications of inmates, the following information was contained in the Addendum: Question #77: Will there be any inmates placed at the Everglades or Baker Re-Entry Centers with mental health psych grades? If so, is there going to be any mental health personnel on-site at either facility? Answer #77: The Department will house Psych Grade 1*, 2*, at the Baker Re-Entry Center and 1*, 2*, and 3* at the Everglades Re-Entry Center, however 3*s will be housed on a limited basis. Mental Health Services will be provided by Corizon, Inc. at Baker Re- Entry Center and [by] Wexford Health Sources at Everglades Re-Entry Center. These services, which will be under the direction of a licensed psychologist, may be provided on site, or at the parent institution. The Department utilizes a 1-to-5 scale to measure the level of mental illness an inmate is demonstrating to determine what kind of personnel is necessary to manage the inmate. Psych grade 3 (called “S3”) is the highest grade of mental illness where the inmate does not have to be separated from the general population. S3 inmates are generally those who have been prescribed psychotropic medications. On or about July 23, Replies to the ITN were submitted by Bridges; UPI; Geo Re-Entry Services, LLC; The Transition House; and Westcare Gulfcoast Florida, Inc., for the Baker contract. Bridges and Geo also submitted Replies to the Everglades ITN. The Department designated Kelly Wright as the procurement manager for this ITN. Ms. Wright opened all the timely-filed Replies to the ITN. She determined whether each Reply contained the “Mandatory Documentations” identified in section 4.22.2 of the ITN, e.g., the information cost sheet, price sheet, and attestations. She then forwarded the Replies to a group of five “evaluators” for further review. Each of the evaluators was experienced in the review process. They were provided a manual and training by Ms. Wright to help focus their reviews of the Replies. The evaluators individually scored each Reply using the scoring criteria set forth in revised Attachment 7 of the ITN. As they reviewed the Replies, some of the evaluators also prepared negotiation topic sheets for use during the upcoming negotiation phase. Upon completion of their review, the evaluators scored the Replies as follows: UPI – 940.06 Bridges – 846.00 Geo – 805.80 Westcare – 710.38 Transition – 700.83 The scores were presented to Ms. Wright, who forwarded them to Patrick Mahoney, DOC’s bureau chief of Transition and Substance Abuse Treatment Services. Mr. Mahoney served as the lead negotiator in this ITN process as well. He reviewed the scores and decided the Department would only negotiate with UPI due to that vendor’s substantially higher score than its competitors. The Department then scheduled a negotiation session with UPI. In addition to Mahoney, two other negotiators (James Freeman and Dan Eberlein, both of whom had served as evaluators) took part in the process. The negotiation session with UPI was held on August 15. Thereafter, DOC was satisfied that UPI’s proposal met the Department’s needs and decided to close the negotiation process. The Department was ready to award a contract to UPI for the Baker Re-Entry Center. Meanwhile, on or about August 20, a newspaper article was published in the Miami Herald which discussed possible inmate populations at Baker and Everglades. The article seemed to infer that all inmates at the Re-Entry Centers would be inmates with significant mental health issues. When DOC personnel reviewed the Miami Herald article, the Department’s initial perception was that the mental health issue may substantially affect the ITN as posted. The Department decided to reopen the negotiation process for both Baker and Everglades to address any possible changes to the ITN caused by the change in inmate population. This time, the Department also invited Bridges and Geo to negotiate regarding the Baker contract. A telephonic negotiation session was noticed and then held on September 4 between the Department and each of three vendors: Bridges, UPI, and Geo. The negotiation session for Bridges was opened by Kelly Wright who stated, “This is . . . a negotiation meeting for comprehensive re-entry services at Everglades and Baker Re-Entry Centers.” Bridges (represented at the session by its CEO, Lori Constantino-Brown), was asked if it had a plan to handle S3 inmates and Bridges replied in the affirmative. Bridges’ representative was specifically asked whether her responses would be any different for Baker than for Everglades (because Everglades already contemplated the presence of S3 inmates). She replied in the negative, saying “The approaches would be the same on both facilities in terms of the types of programs we would be using. The way that we would staff pretty much is exactly the same, I think, maybe give or take one position. I mean, there are I would say about 95, 99 percent similar, you know, except, you know, where the RFP kind of dictated something different.” When the Department further inquired whether Bridges had anything to add separately for Baker, the representative replied, “No.” And once again when the Department asked Bridges if there were any “additional issues or anything you would like to tell us,” Bridges replied, “No.” Bridges had every opportunity at the negotiation session to provide information or ask questions about the Baker Re-Entry Center proposal. On September 5, the Department issued its Requests for Best and Final Offer (RBAFO) to UPI and Bridges concerning their interest in offering contracts for the Baker center. A RBAFO is only sent to vendors the Department believes can adequately and efficiently meet the requirements of the ITN. Bridges would not have been part of the RBAFO process but for the negotiation having been reopened. Each vendor submitted their Best and Final Offer (BAFO) on September 11. After review of the BAFOs from the vendors, the Department chose to award the contract to UPI. Bridges timely filed a formal written protest and petition for formal administrative hearing, resulting in the instant proceeding. The BAFOs were independently reviewed by each of the negotiators. They used the selection criteria set forth in the ITN, specifically: Experience in similar delivery of criminal justice services; Staffing quality and schedules; Quality and flexibility of Programming; and Cost. The negotiators unanimously decided that UPI’s proposal best satisfied the selection criteria. During their reviews, the negotiators did not specifically refer back to the vendors’ Replies to the ITN. However, the two negotiators who had also been evaluators were already familiar with the information in the Replies and considered that information as part of their evaluation review. Mahoney, who had not initially evaluated the Replies, reviewed the ITN Replies during the negotiation process. Although Bridges did not specifically direct the negotiators to review its ITN Reply, the ITN Reply had nonetheless been reviewed. By way of example, the negotiators found that Bridges’ value-added services were the same in its Reply and its BAFO, a clear indication that both were considered. The process for this particular ITN admittedly had some unusual but unforeseeable issues. Normally, once the Department has decided which vendors to negotiate with, it will close the process from further review. And that did in fact occur in this case. However, the publication of the article in the Miami Herald caused an anomalous blip in procedures. Personnel within the Department at first believed that the article was correct, i.e., that all inmates to be processed through the Baker and Everglades Re-Entry Centers would be suffering from significant mental illness. If so, that would be considered a “game changer” for the ITN, requiring amendment or rescission of the ITN. The article was not entirely correct. In fact, while there would be inmates at each of the centers with some level of mental illness, those would be limited to no more than 50 of the 432 inmates at Baker. The Everglades contract already presupposed some level S3 inmates, those with psychiatric levels which might require psychotropic medications. The only change to the ITN after the newspaper article was that Baker might also house some level S3 inmates. At any rate, the Department decided to reopen negotiations in order to allow the interested vendors to address the S3 inmate issue. Bridges was included in the reopened negotiations although it had been excluded from the prior negotiations. The Department had already deemed UPI the most qualified vendor, but decided that if Bridges could address the S3 situation better, it might warrant further review. The Department also had further negotiation sessions with UPI for Baker and Everglades on September 4. The same question--almost verbatim--was asked of UPI that had been asked of Bridges, i.e., how do you intend to handle the S3 inmates? UPI’s response was more in depth than Bridges response, even though both vendors essentially said their proposals as submitted would cover the S3 inmates. Bridges’ claim that it was not aware the Baker contract would be discussed at the September 4 negotiation meeting is not credible; the email sent to Ms. Constantino-Brown is entitled, “Bridges of America, Inc. Negotiations for Comprehensive Re- Entry Services at Everglades and Baker Re-Entry Centers.” While Ms. Constantino-Brown may have interpreted the email to address only the Everglades contract and that a session for Baker would follow, her interpretation was mistaken. That is borne out by the statements made during the session by Department representatives as set forth above. As a result of the negotiation session, the Department requested BAFOs from both UPI and Bridges for the Baker facility contract. Both vendors timely submitted their BAFO for consideration by the Department. As stated previously, the Department selected UPI’s proposal to the exclusion of Bridges. Bridges asserts it was not given the same opportunity as the other vendor to discuss core issues within its Reply and BAFO, e.g., unit management. Again, the evidence does not support Bridges’ contention. Bridges suggests that the addition of the S3 inmates at the Baker Re-Entry Center substantially altered the substance of the ITN. That contention is not supported by the evidence. In fact, Bridges specifically stated that its proposal for Everglades (which already had S3 inmates) was essentially the same as its Baker proposal. The totality of the evidence suggests that Bridges may have operated under a false assumption concerning the negotiation session, but its mistake does not void the Department’s actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Corrections upholding its award of the contract for services at the Baker Re-Entry Center to Unlimited Path of Central Florida, Inc. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 31st day of December, 2014. COPIES FURNISHED: Jonathan P. Sanford, Esquire Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed) Amy W. Schrader, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32302-3189 (eServed) Jodi Nicole Cohen, Esquire Panza, Maurer and Maynard, P.A. 3600 North Federal Highway, Third Floor Fort Lauderdale, Florida 33308 (eServed) Timothy Cannon, Interim Secretary Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed) Jennifer Parker, General Counsel Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed)
Findings Of Fact Petitioner contracted with Respondent to provide, inter alia, through appropriate subproviders, mental health services in accordance with the provisions of the Baker Act, Chapter 494 Part I, Florida Statutes and rules and regulations promulgated pursuant thereto (Exhibit 3). Respondent subcontracted with Apalachee Community Mental Health Services, Inc. (MHS) to provide, as an independent contractor, or through subagreement with qualified providers, services according to the Mental Health Board Plan; and, in carrying out these services, to comply with federal and state statutes and regulations. In carrying out this contract MHS processed and paid, from funds receivec rem Petitioner, provider services in connection with the Baker Act program. During the period covered by this audit, Dr. Robert G. Head and Dr. Cyril Phillips provided psychiatric care to Baker Act patients for which they were reimbursed by MHS. Most of this care was provided at Goodwood Mental Health Facility, a unit operated by Tallahassee Memorial Regional Medical Center (TMRMC). Both Head and Phillips were designated as mental health providers by Petitioner. Head and Phillips shared office space and a secretary but were not a partnership or organized as a professional association. While conducting the audit, the auditors contacted Dr. Head to audit his racords for the Baker Act patients treated. Dr. Head claimed he had no advance notice of this audit and when he was called by his office at his home while suffering from the flu he refused permission for the auditors to examine his records. The audit was completed without benefit of any of Head's or Phillips' records and the discrepancy in failing to account for third party reimbursements formed the basis for the deficiency here claimed. When Dr. Head was told the auditors had the right to inspect Baker Act patient records, he rescinded his refusal and some four months later his office was visited to check these records. Upon the auditor's arrival no Baker Act patient records for the audit period could be located. The secretary for Head and Phillips had absconded and their accountant found she had embezzled a considerable sum ($75,000 - $100,000) from the office by forging endorsements on checks received and depositing in her or her husband's bank account. Apparently patient records were removed or destroyed to conceal the embezzlement. In any event no such records were produced by the doctors and no effort was made by the doctors to obtain from TMRMC records of those patients treated by them who had insurance to cover part or all of their treatment. Such insurers would be third party payers from whom the provider is required to collect and account to Petitioner for such collections. That the doctors provided the treatment is evidenced by the bills they submitted. The only issue is whether the doctors were also paid by third parties for these services, and if so, how much were they paid that should be returned to Petitioner. Neither Head nor Phillips gave sufficient attention to the paperwork involved with the Baker Act patients but left this up to the secretary. The missing records covered two fiscal years so the inadequate supervision of the office continued over a prolonged period. Respondont suggests that Petitioner's auditors could have reconstructed the doctors' records by comparing the Baker act patients for whom they billed MHS with TMRMC records to show which of those patients costs could have been part reimbursed by third parties. Had that been done it would have shown that a majority of those patients had no "third Party" source of funds. No evidence was submitted that Petitioner has such a duty. Exhibit 3 provides the Board and the provider will retain all financial records, supporting documents, statistical records and any other doctments pertinent to this agreement for a period of three years after submission of final report, if an audit has not been initiated during that period, and the findings have not been resolved at the end of three years, the records shall be retained until the resolution of the audit findings. Exhibit 6 consists of records of seven patients treated by Head or Phillips during the audit period. Of these seven, two had insurance available from which third party payments were available. No audits of providers were made by Respondent during the period covered by the audit.
The Issue In its request for hearing Petitioner disputes HRS' reduction of $127,206.00 of Baker Act funds from its fiscal year 1988/89 contract, and HRS' demand of payback of an additional $50,107.00 for fiscal years 1987/88 and 1988/89. These funds relate to an expansion of crises stabilization unit beds at Petitioner's facility. The additional beds were not licensed until March, 1989. Petitioner claims that all but $42,517.00 of the disputed funds were appropriately and reasonably expended and should not be disallowed. Respondent claims that the beds were not filled until approximately one year after the funds were allocated, and that three months' actual operation and three months start up costs are all that can be reasonably allowed, thus requiring a $177,313.00 reduction in contract funds.
Findings Of Fact Petitioner, Seminole Community Mental Health Center, Inc. (SCMHC) is a non-profit corporation which entered into annual contracts with Respondent, Department of Health and Rehabilitative Services (HRS) for fiscal years 1987/88 and 1988/89 to provide certain alcohol, drug abuse and mental health services in Seminole County Florida, HRS District 7. These services included a Crises Stabilization Unit (CSU) which provides brief, intensive residential treatment services to mentally ill persons in acute crisis. The CSU has been in operation since 1983, with twelve beds. The 1987 Legislature provided a special appropriation to District 7 for additional CSU beds, including funds for construction and two months operation. During fiscal year 1987/88, the parties amended their contract, in Amendment No. 3, to increase SCMHC's Baker Act funds by $74,896.00 for an eight (8) bed expansion of SCMHC's existing twelve bed CSU This amendment is dated February 8, 1988. The amendment provides that $52,184.00 of the $74,896.00 is designated for operations and that $22,712.00 is designated for a one time non- recurring expense for the eight (8) bed expansion. SCMHC received the one time non-recurring funds of $22,712.00 in March of 1988, and said funds are not at issue in this case. During February, March and April of 1988, SCMHC and HRS worked together on the construction, renovation, hiring and financial plans for the expansion. The original goal was to have the beds on-line by May 1, 1988, but the parties soon realized that the bidding and county purchasing requirements would extend that date. On April 26, 1988, Jim Berko, the Executive Director of SCMHC, and Stan Wagy, the District 7 Program Supervisor of HRS, worked out plans that would allow SCMHC to provide the eight (8) temporary CSU beds while undertaking renovations and construction for the eight (8) permanent new beds. The new beds were to be ready in September, 1988. On May 12, 1988, Jim Berko sent a letter to Vince Smith, the Health Services and Facilities Consultant for the HRS Office of Licensure and Certification (OLC) requesting temporary licensure of the eight (8) new CSU beds while the renovation and construction was being completed at SCMHC. This plan for temporary licensure was developed with the involvement and approval of Stan Wagy. It included six temporary new beds at SCMHC's facility, and SCMHC's purchase of services of two beds at Florida Hospital in Altamonte Springs. HRS never once voiced any objection to SCMHC's expansion plans or progress; however, OLC responded to the temporary license request by stating that it was premature. In April of 1988, SCMHC began hiring the new staff required for the eight (8) bed expansion. This was necessary because of the difficulty in finding and training qualified staff, a three to six month process according to SCMHC's expert, Rod Guzman. There is a shortage of nurses, and SCMHC, as a non- profit corporation, has a hard time competing with the salaries offered to nurses by private doctors, clinics and hospitals. Stan Wagy admitted at the hearing in this case, that if the figure for the salary and benefit expenses of the staff required for the eight (8) bed expansion for the last two months of fiscal year 1987/88 were known, said expense would be considered as an allowable operating expense by HRS. SCMHC established that its expenditure for salaries and benefits for the additional staff required by the eight (8) bed expansion for the last two months in the fiscal year 1987/88 was $27,314.00. For fiscal year 1987/88, SCMHC spent in excess of its Baker Act funds and met the required local match for Baker Act funds, so that the entire $27,314.00 in staff salaries and benefits required by the eight (8) bed expansion for the last two months (May and June of 1988) of fiscal year 1987/88 is an allowable cost. No payback is due HRS for fiscal year 1987/88 according to the following: 1987/88 Contract (8 New Beds) $74,896.00 - Total contract amendment -22,712.00 - One time non-recurring cost $52,184.00 - Operating expenses -27,009.00 - OCO - includes architectural fees and land survey (uncontroverted cost) -27,314.00 - Staff salaries and benefits $(2,139.00) The parties entered into a new contract on June 30, 1988, for fiscal year 1988/89, which began on July 1, 1988 and ended on June 30, 1989. The fiscal year 1988/89 contract does not mention any number of CSU beds to be provided with the Baker Act funds. For fiscal year 1988/89, the parties' contract allocated $313,152.00 as Baker Act funds. The eight (8) bed expansion of SCMHC's CSU required construction of 1,600 square feet of additional clinical space and major renovations of the existing facilities. The renovation and construction of SCMHC's physical facilities began in June of 1988 and terminated in September of 1988. This time schedule was in accord with the time schedule discussed with the HRS program office on at least a monthly basis. The eight (8) beds were on-line in September, 1988. They were purchased from Florida Hospital until the SCMHC license was issued. A mental health center must be ready to put clients in their beds before they can send in their application for licensure to the Office of Licensure and Certification. SCMHC's application for licensure was sent to OLC on September 20, 1988. A memorandum dated September 19, 1988 from Stan Wagy, District VII Program Supervisor of HRS, to Vince Smith, Program Manager of OLC, verifies the addition of the eight (8) beds in SCMHC's CSU. It was uncontroverted that the application for licensure in September of 1988 was in accordance with the parties' agreed upon time schedule. On November 8 and 9, 1988, OLC performed a site survey of the facilities and staff at SCMHC, and on November 30, 1988, sent their Deficiency Report to SCMHC. SCMHC's responses to OLC were immediate. On March 1, 1989, OLC acknowledged receipt of SCMHC's Quality Assurance Plan and enclosed regular license number 510, which increased SCMHC's licensed CSU capacity from twelve (12) to twenty (20) beds. SCMHC did everything possible to expedite the licensure of its eight (8) new CSU beds and had no basis to anticipate the time it would take for approval. The first time Jim Berko heard that HRS had reduced SCMHC's Baker Act funds was during lunch with Stan Wagy on March 14, 1989, when Stan Wagy casually mentioned that HRS had reduced SCMHC's 1987/88 and 1988/89 Baker Act funds by approximately $127,000.00. On March 15, 1989, at the request of Jim Berko, official written notification was provided to SCMHC stating that a payback of $127,206.00 was due HRS from SCMHC's 1987/88 and 1988/89 Baker Act funds. On June 5, 1989, Paul Snead wrote a letter to Dr. Barry Hersone, President of the Board of Directors of SCMHC, requesting an additional $50,107.00 in payback by SCMHC of their 1987/88 and 1988/89 Baker Act funds. At the hearing in this case, the parties agreed that the year-end audited Baker Act expenditures of SCMHC should be utilized by the Hearing Officer instead of the projected or estimated annual Baker Act expenditures utilized in the June 5, 1989 letter of Paul Snead, Administrator of District VII. The actual year end audited Baker Act expenditures of SCMHC for fiscal year 1988/89 are as follows: 1988/89 Contract (20 Beds) TOTAL BAKER ACT EXPENDITURES Salaries and Benefits $556,155.00 Contractual Services 68,650.00 Operating Expenses 138,883.00 OCO/Renovations 31,609.00 Occupancy 59,499.00 The total allowable expenditures for SCMHC's Baker Act funds for fiscal year 1988-1989 attributable to the new beds are $360,847.00, which are calculated as follows: 1988-1989 Contract (prorated for the 8 new beds) TOTAL EXPENDITURES 40% Salaries and Benefits $556,155.00 divided by 20 x 8 = 222,462.00 Contractual Services 68,650.00 divided by 20 x 8 = 27,424.00 Operating Expenses 138,883.00 divided by 20 x 8 = 55,553.00 OCO/Renovations 31,609.00 31,609.00 Occupancy 59,499.00 divided by 20 x 8 = 23,799.00 FISCAL YEAR 1988/89 TOTAL ALLOWABLE EXPENDITURES $360,847.00 The State's share of the 1988/89 Total Allowable Expenditures is $270,635.00, which is calculated as follows: 1988/89 Total Allowable Expenditure $360,847.00 State's Share (less local match of 25%) x .75 $270,635.00 For fiscal year 1988/89, SCMHC met the required local match for its Baker Act funds. A payback of $42,517.00 was due HRS from SCMHC for fiscal year 1988/89, which is calculated as follows: 1988/89 Total Baker Act Fund Contract Allocation $313,152.00 Less Total State Share of Expenditures -270,635.00 PAYBACK DUE STATE FOR FISCAL YEAR 1988/89 $ 42,517.00 HRS contends that since the eight (8) beds were not licensed until March, 1988, the center in not entitled to operating funds for those beds until that time. Stan Wagy conceded that some start-up time is reasonable and he estimated that three months would be sufficient. For that reason HRS disallowed all but six months expenses prorated for the eight (8) beds. No basis for the three-month cut-off was presented by HRS. SCMHC, however, presented competent substantial evidence that the funds were spent, and reasonably so, well in advance of the date of license for the eight (8) beds. Hiring of staff commenced in March, 1988 and was finished by July, 1988. Some turnover was experienced, and vacancies were filled. The patients for the eight (8) beds were treated elsewhere until licensure, but the center was paying for that treatment. Once the renovation and construction was complete in September, 1988, costs associated with those beds were incurred, even without licensure. Those costs include, but are not limited to, rent and utilities and sub-contractual expenses related to the provision of the additional eight-bed services elsewhere. At the time that the parties' contract for 1988/89 was executed in June, 1988, all were aware of the status of the eight (8) additional beds, yet no provision was made at that time to prorate the expenses or to condition compensation on the actual number of licensed beds. It was reasonable and necessary for SCMHC to incur the full $360,847.00 expenses in fiscal year 1988/89. Because HRS has already erroneously reduced SCMHC's Baker Act funds by $127,206.00 for fiscal year 1988/89, HRS is calculated as follows: Amount Reduced from SCMHC owes SCMHC a return of $84,689, which for Fiscal Year 1988/89 Less Correct Payback Figure to HRS from SCMHC for Fiscal Year 1988/89 $127,206.00 -42,517.00 AMOUNT OWED TO SCMHC FROM HRS $ 84,689.00 The remaining payback of $50,107.00 requested by HRS for fiscal years 1987/88 and 1988/89 is not owed to HRS by SCMHC.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a Final Order be entered finding Petitioner entitled to the disputed funds and to restoration of $84,689.00 of the Baker Act funds withheld from its 1988/89 contract payments. DONE and RECOMMENDED this 20th day of December, 1989, in Tallahassee, Florida. MARY CLARK 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 20th day of December, 1989. COPIES FURNISHED: Donna L. McIntosh, Esquire Frank C. Whigham, Esquire Post Office Box 1330 Sanford, Florida 32772-1330 James Sawyer, Jr., Esquire Dept. of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson St., Suite 701 Orlando, Florida 32801 Gregory L. Coler, Secretary Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, General Counsel Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 =================================================================
