The Issue The issue is whether Petitioner is entitled to reasonable attorney's fees and costs (fees and costs), pursuant to Section 57.111, Florida Statutes (2003), as the prevailing party in DOAH Case No. 02-1659.
Findings Of Fact Sometime in February 2002, Respondent filed an Administrative Complaint against Petitioner. Petitioner requested an administrative hearing, and DOAH Case No. 02-1659 ensued (the underlying case). Respondent admits that Petitioner was the prevailing party in the underlying case. The Recommended Order in the underlying case recommended that the agency enter a Final Order finding the facility not guilty of the violation alleged in the Administrative Complaint. The Final Order adopted the findings and conclusions in the Recommended Order. Respondent does not contest that fees and costs in the amount of $10,889.00 are reasonable. Petitioner incurred fees of $6,890.00 and $3,760.00, respectively, in the underlying case and in this proceeding. Petitioner incurred costs of $239.00 in the underlying case. Petitioner submitted the only evidence concerning the amount of fees and costs and the reasonableness of that amount. Respondent defends the request for fees and costs on two grounds. Respondent contends that Petitioner is not a small business party and that the agency had substantial justification for initiating the underlying case. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes (2003). Petitioner is a closely held corporation with its principal office in the state. The record in this proceeding and that in the underlying case clearly show that Petitioner has only one place of business. When the agency initiated the underlying case, the facility operated by Petitioner had no more than 25 full-time employees and had a net worth of less than $2 million. The facility contained 34 beds and 17 residents in 2002. The fair market value on May 1, 2003, was $1,840,000. Thereafter, the facility expanded by eight rooms and 16 beds and has a projected fair market value of $2,150,000 in May 2004. Contrary to the assertion in Respondent's PFO, the testimony of the sole shareholder is not the only evidence of the net worth of the facility. Documentary evidence includes two written appraisals and a federal income tax return for the 2002 tax year. The tax return reports total assets and liabilities, respectively, of $1,295,010 and $501,088. Respondent was substantially justified in initiating the underlying case. Respondent had a solid basis in fact for the position that it took in the underlying case. On June 27, 2002, the facility transferred a resident to a hospital for a urinary tract infection. The hospital treated the resident intravenously for five days with an antibiotic identified in the record as Tequin, until the resident was asymptomatic, and discharged the resident to the facility. The discharge summary directed the resident to continue Tequin orally, but the hospital did not issue a prescription slip for Tequin. The facility did not administer Tequin to the resident, the infection recurred, and the hospital readmitted the resident. The allegations in the Administrative Complaint and survey findings did not state a legally correct basis for initiating the underlying case. The Administrative Complaint alleged, in relevant part, that the facility violated Florida Administrative Code Rule 58A-5.0185(7)(f) by failing to ensure that prescriptions are "refilled." It was undisputed in the underlying case that a prescription for Tequin did not exist before the date of discharge from the hospital. The agency alleged that the facility failed to "refill" the prescription either by overlooking the prescription slip provided by the hospital or by failing to review the discharge summary to determine that the hospital had failed to include a prescription slip for Tequin. The agency alleged that in either event the facility failed to "refill" an existing prescription. The agency never produced the prescription slip for Tequin that the agency alleges the hospital included with other prescriptions on the date of discharge. The facility "filled" or "refilled" the other prescriptions provided by the hospital. The absence of a prescription slip for Tequin raises an issue of whether the facility received adequate notice of its duty to "fill" or "refill" a prescription for Tequin. The agency's proposed resolution of the notice issue was legally incorrect. The agency alleged that the facility failed to note "either the Resident's discharge instructions or the prescription slip." In the absence of a prescription slip, the failure to note the discharge instructions may have violated a rule of the agency, but the failure to note the discharge summary did not violate the rule requiring Petitioner to take appropriate steps to "refill" a prescription. Respondent's expert witness in this proceeding contradicted the charge in the underlying case that distinguished discharge instructions from a prescription slip. Respondent's expert testified that the agency was substantially justified in initiating the administrative action because the hospital "discharge instructions" constituted a "prescription." Respondent's expert attempted to explicate his administrative interpretation of the relevant rule by stating that the pharmacist would need to telephone the prescribing physician to "verify the prescription" in the discharge summary, but would not need to do so if the hospital had issued a prescription slip. The testimony of Respondent's expert conflicts with the statutory definition of a prescription in Section 893.02(20), Florida Statutes (2003), and is neither credible nor persuasive. The statute defines a prescription, in relevant part, to include a physician's order for drugs that is transmitted by telephone. A pharmacist that telephoned a physician to "verify a discharge summary" notation would actually fill the order for medication that the physician transmitted by telephone to the pharmacist. For reasons stated in Findings 8 and 9, the agency was substantially justified in initiating the administrative action. However, the agency charged the facility with committing acts that, if proven, did not violate the rule cited in the Administrative Complaint. For reasons stated in the Recommended Order in the underlying case, an agency cannot charge the facility with violating one rule and prove that the facility violated a rule not cited in the Administrative Complaint. To do so, would violate fundamental principles of due process as well as essential requirements of the Administrative Procedure Act.
The Issue The issue is whether Petitioner Michael A. Crane, d/b/a Accent Builders of Florida, Inc., is entitled to an award of attorney's fees against Respondent, Department of Business and Professional Regulation, pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On October 14, 2005, Petitioner filed a Motion for Reimbursement of Attorney's Fees and Costs. Petitioner seeks reimbursement of attorney's fees and costs incurred in DOAH Case No. 04-4040PL, pursuant to Section 57.111, Florida Statutes. Petitioner is the prevailing party in the underlying proceeding, DOAH Case No. 04-4040PL. On September 23, 2005, the Construction Industry Licensing Board entered its Final Order in the underlying case, in which it adopted the Recommended Order entered in the DOAH proceeding, thereby dismissing the charges that Petitioner had violated certain provisions of Chapter 489, Florida Statutes. In the underlying proceeding, Respondent charged Michael A. Crane with violations of Chapter 489, Florida Statutes, in his capacity as a certified general contractor holding Florida license No. CGC8644. Petitioner had entered into the contract which gave rise to the underlying proceeding as Accent Builders of Florida, Inc. (Accent). Respondent's disciplinary action was not directed at Accent Builders of Florida, Inc., but at Petitioner as the qualifying agent for the company. Petitioner is not a sole proprietor of an unincorporated business. Petitioner is neither a partnership nor a corporation. Petitioner does business in Florida as Accent, but at the time the underlying proceeding was initiated, Petitioner had not applied for and been granted a certificate of authority for Accent through himself as the qualifying agent. In September 2004, while the underlying proceeding was pending, Petitioner applied for and was granted a certificate of authority for Accent with Michael A. Crane as the qualifying agent. Despite the fact that Petitioner was granted a certificate of authority for Accent, the underlying proceeding was brought against the certified general contractor, Michael A. Crane, not against Accent as a corporate entity. In order to determine whether the underlying action brought by Respondent against Petitioner was substantially justified at the time it was initiated by the Agency, the information that was before the probable cause panel that directed the filing of the Administrative Complaint must be examined. In the underlying matter giving rise to Petitioner's request for attorney's fees, the Probable Cause Panel had before it a 188-page Investigative Report, as well as three supplemental Investigative Reports related to the alleged defects in the construction performed by Petitioner. The Probable Cause Panel convened on April 27, 2004, at which time it made a finding of probable cause that Petitioner had violated Subsections 489.129(1)(g)1., (i), (k), and (m), Florida Statutes. The panel members reported that they had reviewed the investigative reports and draft complaints, and were advised by a member of the Attorney General's staff regarding their responsibilities in determining whether probable cause existed to file an Administrative Complaint against Petitioner. The consumer complaint accompanying the Investigative Report alleged that the contractor did not properly supervise the project; that the construction has resulted in numerous leaks; that the steam shower was not installed as required by the manufacturer; that the decking was not installed according to the manufacturer's instructions; and that most of the punch list items had been left unaddressed. The Investigative Report also contained Petitioner's response, which stated that Petitioner was precluded from correcting the deficiencies by the consumer, and that, although responsive to the consumer regarding the leaks, Petitioner saw no damage as a result of the leaks. The Investigative Report contained numerous documents describing the efforts of contractors hired by the consumer to remedy the leaks and alleged defects in construction. The report also included documentation of payments made by the consumer to the various contractors called in to eliminate the problems the consumer was experiencing. The Probable Cause Panel's review of the materials before it resulted in a determination that a reasonable investigation had been conducted, and that a reasonable person could conclude that sufficient evidence existed to charge Petitioner with violations of Chapter 489, Florida Statutes. At the time the Probable Cause Panel reviewed the Investigative Report, it appeared that Petitioner's work had resulted in water damage, and that a valid subcontractor's lien had been placed against the consumer's property resulting in financial harm. The Probable Cause Panel's determination to direct Respondent to file an Administrative Complaint had a reasonable basis in law and fact at the time it was made. Respondent was not a "nominal party" to the underlying proceeding according to the meaning of that term in Subsection 57.111(4)(d)1., Florida Statutes.
Findings Of Fact On October 5, 1989, Respondent filed an Order to Show Cause seeking to take disciplinary action against the certification of authority issued to Petitioner, The Administrators Corporation, and the insurance licenses issued to Petitioner, Charles N. Zalis. Petitioners timely requested a formal hearing, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal hearing regarding the allegations contained in that Order to Show Cause. Upon receipt, the matter was assigned DOAH Case No. 89-5981. The final hearing in that disciplinary matter was conducted on May 14, 1990. Thereafter, a Recommended Order was entered on July 9, 1990, recommending to Respondent that a final order be entered finding Petitioners not guilty of the allegations contained in the Order to Show Cause and dismissing the Order to Show Cause filed against them. None of the parties filed exceptions to the Recommended Order. On August 15, 1990, the Treasurer and Insurance Commissioner entered a Final Order adopting in full the Findings of Fact, Conclusions of Law, and Recommendation contained within that Recommended Order; finding the Petitioners not guilty of the allegations contained in the Order to Show Cause filed against them, and dismissing the Order to Show Cause. On September 21, 1990, Petitioners filed with the Division of Administrative Hearings their Petitions for Costs and Fees, pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code. On September 27, 1990, an Initial Order was entered in each of the above-captioned causes. The Initial Order is a form order automatically prepared by the Clerk's Office and signed by the Director of the Division of Administrative Hearings in every case filed with the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes, except for those proceedings conducted on an expedited basis pursuant to statutory directives. The Initial Order advises the parties as to the name of the Hearing Officer assigned to hear the matter, provides certain procedural information, and solicits specific information from the parties so that the matter can be scheduled for an evidentiary hearing appropriately. On October 8, 1990, Respondent filed a joint Response to Initial Order on behalf of all parties, and on October 10, 1990, Respondent filed a joint Amended Response to Initial Order on behalf of all parties in this proceeding. The Amended Response to Initial Order advised that the parties had agreed that the final hearing should be scheduled for one day during the month of February, 1991, in Tallahassee. Pursuant to the agreement of the parties regarding the scheduling of the evidentiary hearing in this cause, on October 19, 1990, these causes were consolidated sua sponte, and a formal hearing was scheduled in these consolidated causes for February 14, 1991, in Tallahassee, Florida. No response by Respondent to either the Petition for Costs and Fees filed by The Administrators Corporation or the Petition for Costs and Fees filed by Charles N. Zalis has ever been filed in this cause even in the face of the Motion for Summary Final Order based upon Respondent's failure to respond. Accordingly, this matter is decided on the basis of the petitions filed in these consolidated causes, together with the documentation attached to those petitions, Petitioners' Motion for Summary Final Order, together with the documentation attached to that motion, and Respondent's Response to Motion for Summary Final Order. Since the Respondent has failed to controvert or dispute any of the factual allegations contained within those pleadings, there is no factual allegation in dispute in these consolidated causes. Petitioners are small business parties as defined by Section 57.111, Florida Statutes. By virtue of the Final Order entered in DOAH Case No. 89- 5981, Petitioners are prevailing small business parties in an administrative proceeding pursuant to Chapter 120 initiated by a state agency. The actions of Respondent both in initiating and in pursuing the Order to Show Cause filed in DOAH Case No. 89-5981 were substantially unjustified, and no special circumstance exists which would make unjust the award of attorney's fees and costs to Petitioners in these consolidated causes. The itemized affidavits filed in these consolidated causes reveal the nature, extent, and monetary value of the services rendered by Petitioners' attorneys, as well as the costs incurred in the underlying proceeding. Petitioners incurred attorney's fees in the amount of $49,581.25 and costs in the amount of $7,351.72 in the underlying administrative proceeding. The amounts of attorney's fees and costs claimed by Petitioners are reasonable and necessary. The Department of Insurance and Treasurer was not a nominal party only in the underlying administrative proceeding. Petitioners filed their Petitions for Costs and Fees within 60 days after the date that they became prevailing small business parties.
Findings Of Fact On December 22, 1987, the undersigned held a formal hearing in the underlying case, (DOAH Case No. 87-3084), and on February 4, 1988, issued a Recommended Order to the Florida Real Estate Commission in which it was concluded that the Petitioners had violated various provisions of the Florida Statutes and that disciplinary action was appropriate. Specific disciplinary action was recommended as to each Petitioner. In its Final Order, predicated upon the above mentioned Recommended Order, the Commission adopted the undersigned's Findings of Fact and Conclusions of Law but found the recommendation for punishment as to both Petitioners was inadequate. The Commission increased each period of suspension, rejected the recommendation for stay and automatic remission as to the suspensions, and imposed an administrative fine on each Petitioner. Thereafter, Petitioners appealed the Final Order to the Second District Court of Appeal which, in an opinion filed February 17, 1989 affirmed the Commission's findings of guilt but reversed the penalties imposed by the Commission and remanded with instructions to approve the Hearing Officer's recommended penalties. It is on the basis of this appellate action that Petitioners, claiming to be prevailing small business parties, initiated the instant action. Petitioners are requesting attorney's fees in the amount of $5,261.28 for the appellate action which resulted in the District Court of Appeals reducing the penalty imposed by the Commission to that recommended by the Hearing Officer. This fee and cost figure is the cumulative of charges incurred and represented on 11 monthly billing statements starting 06-01-88 and extending through 04-01-89. Only the last eight, starting with the 09-01-88 billing, state the hours spent providing service. The Florida Legislature has defined a "prevailing small business party" at Section 57.111(3)(c), Florida Statutes.
The Issue The issues are whether Petitioner is entitled to recover attorney's fees and costs (fees and costs) pursuant to Section 120.569(2)(e), Florida Statutes (2002); and, if so, what amount of fees and costs is reasonable. (All statutory references are to Florida Statutes (2000)).
Findings Of Fact The underlying case arose from an inspection conducted by the Agency for Health Care Administration (AHCA) employees on March 8, 2001, of a nursing home facility owned and operated by Petitioner and identified in the record as Palm Bay. AHCA employees prepared a survey report that alleged several deficiencies at Palm Bay. The parties attempted unsuccessfully to resolve the alleged deficiencies through Informal Dispute Resolution. By letter dated May 14, 2001, the Director of Nursing Services for AHCA notified Petitioner that Respondent proposed to uphold the deficiencies cited in the survey report. Neither the survey report nor the letter dated May 14, 2001, is a "pleading, motion, or other paper" within the meaning of Section 120.569(2)(e). Petitioner does not identify a specific pleading, motion, or other paper that Petitioner claims Respondent filed for an improper purpose. Petitioner claims that Respondent "participated" in the underlying proceeding for a frivolous purpose or to needlessly increase the cost of litigation. In paragraph 32 of Petitioner's Proposed Final Order, for example, Petitioner proposes that the ALJ conclude: . . . that AHCA participated in the underlying proceeding for a frivolous purpose or to needlessly increase the cost of litigation within the meaning of Section 120.569(2). (emphasis supplied) Section 120.569(2) does not include the term "participated" and does not include any derivation of the term. The scope of Section 120.569(2) is expressly limited to pleadings, motions, or other papers filed in the underlying proceeding. Section 120.569(2) neither requires nor authorizes the ALJ to make findings or conclusions concerning the issue of whether Respondent "participated" in the underlying proceeding for an improper purpose. Statutory authority to determine whether Respondent "participated" in the underlying proceeding for an improper purpose is found in Section 120.595. However, Petitioner relies solely on Section 120.569(2)(e) as the basis for its claim for fees and costs. Petitioner did not provide prompt notice to the ALJ or Respondent that Petitioner intended to seek fees and costs pursuant to Section 120.569(2)(e). At the outset of the administrative hearing in the underlying case, Petitioner made an ore tenus motion on the record for fees and costs without specifying the statutory basis of the claim. At the suggestion of the ALJ, the parties agreed to address the issue of fees and costs after the ALJ issued a recommended order. The fees and costs sought by Petitioner are not reasonable for the purposes of Section 120.569(2)(e). By not providing prompt notice that Petitioner intended to seek fees and costs pursuant to Section 120.569(2)(e), Petitioner did not take action to mitigate the amount of resources expended by Petitioner in defense of a pleading, motion, or other paper filed by Respondent in the underlying proceeding. Petitioner failed to show that Respondent did not have a reasonably clear legal justification for issuing the survey report and letter dated May 14, 2001. The issue of whether Respondent was reasonably justified in filing the survey report and letter dated May 14, 2001, must be resolved on the basis of the facts known to Respondent at the times that Respondent issued the report and letter. The ALJ should not engage in hindsight based on the evidence adduced at the hearing in the underlying case. Petitioner relies on findings in the Recommended Order that evidence submitted by Respondent was either insufficient to sustain that allegations against Petitioner, not credible, or not persuasive. Petitioner also relies on conclusions in the Recommended Order that Respondent's legal interpretation of applicable law conflicted with published opinions of the United States Department of Health and Human Services. That the ALJ chose to adopt Petitioner's position over that of Respondent is not an adequate basis for the imposition of fees and costs pursuant to Section 120.569(2)(e). Section 120.569(2)(e) is not aimed at fee shifting to compensate the prevailing party. Even if Section 120.569(2)(e) were aimed at fee shifting to compensate the prevailing party, Petitioner's reliance on findings and conclusions in the Recommended Order is misplaced. The Final Order issued by Respondent in the underlying case modified many of the findings and conclusions in the Recommended Order that Petitioner relies on to support its request for fees and costs; even though the Final Order did not change the ultimate outcome. The recommended findings and conclusions modified in the Final Order are a matter of record and need not be repeated. The changes made in the Final Order in the underlying case illustrate the justification Respondent had for issuing the survey report and letter dated May 14, 2001.
Findings Of Fact This cause originated in a disciplinary action resulting from an administrative complaint filed by the Department of Professional Regulation, Division of Real Estate against the Petitioners herein, Malcolm Lewis Hardy and Aquatic Realty, Inc. The Petitioners herein were the Respondents in the licensure disciplinary proceeding. That proceeding was resolved in their favor by the Recommended Order of the Hearing Officer and by the Final Order filed April 15, 1988 by the Department of Professional Regulation. They have accordingly filed a request for attorney's fees and costs on the ground that the prosecution involved in the underlying case was not "substantially justified." The cause came on for a brief hearing. The parties elected to dispense with calling witnesses at the hearing because they entered into a factual stipulation whereby all germane facts were placed of record. It was thus established that Petitioners Malcolm Lewis Hardy and Aquatic Realty, Inc. (hereafter Hardy) were the Respondents in a licensure disciplinary action brought against them by the above-named Respondent. That disciplinary action was resolved by Final Order filed April 15, 1988 by the Department of Professional Regulation. The Respondents in that case, the Petitioners herein, were totally absolved of any wrongdoing with regard to the charges in the administrative complaint in that proceeding. A copy of that Final Order was mailed by the agency to "Diane Cleavinger, Esquire, 300 East 15th Street, Panama City, Florida 32405." Ms. Jan Nelson, a secretary at that address, and employed by Ms. Cleavinger's former law firm, received a copy of that order and executed the return receipt appearing on the envelope on April 18, 1988. Ms. Nelson was not Ms. Cleavinger's secretary, but rather the secretary of Ms. Fitzpatrick, one of Ms. Cleavinger's former law partners. In any event, Ms. Nelson executed the return receipt on April 18, 1988, but Ms. Cleavinger never received the Final Order nor notification of its filing or receipt by Ms. Nelson. Mr. Hardy never became aware of or received a copy of the Final Order either, until the agency sent another copy to him on September 12, 1988. The affidavit and request for attorney's fees was filed within sixty days of that date. Ms. Cleavinger had left her law firm on January 1, 1988 to become a Hearing Officer with the Division of Administrative Hearings. Mr. Hardy only learned of the Order when he made a direct contact with the Department of Professional Regulation and they learned that he had not received the Final Order. It was thus mailed to him on September 12, 1988 and received on September 14, 1988. That Order dismissed all claims against Hardy and Aquatic Realty, Inc. and thus those parties are in fact "prevailing, small business parties," within the meaning of Section 57.111, Florida Statutes. It was stipulated at hearing, as well, that these Petitioners are small business, prevailing parties and that they incurred attorney's fees in the amount of $1,642.04 for services rendered by Ms. Cleavinger when she represented them in the underlying case-in-chief and that costs amount to $333.71. Additionally, Mr. Hardy further incurred attorney's fees and costs in the amount of $500 in connection with the pursuit of this fee claim by attorney Whitton. It was stipulated that that amount is reasonable. Additionally, the Department accepted its burden of establishing that its action was "substantially justified," within the meaning of Section 57.111, Florida Statutes, and have stipulated that they have not done so. Thus the only issue for resolution concerns whether the claim of Hardy was time-barred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent, Department of Labor and Employment Security, is the agency responsible for carrying out the duties and responsibilities assigned by the Governor of Florida under the Job Training Partnership Act, Public Law, 97- 300, as amended. In administering the JTPA, Respondent provided Petitioner, along with others, a RFP, which among other things, solicited proposals for programs to provide training and employment for older individuals as provided for by Section 124, JTPA, Title I. Paragraphs 111(1-7) of the RFP lists the requirements that must be addressed in the proposal and be judged affirmatively by Respondent in order for the proposal to be designated responsive and subject to further review and scoring. One of the requirements is the review by, and concurrence of, the CEO prior to submitting the proposal. The purpose of requiring CEO and Private Industry Council (PIC) Concurrence Statements at time of submission is to insure that no applicant uses State approval to "arm twist" the local PIC and CEO into approval. Petitioner submitted its proposal to the appropriate PIC for review and concurrence, thinking that the CEO Concurrence Statement would be obtained by the PIC. Upon return of the proposal by the PIC, there was no executed CEO Concurrence Statement included and, upon inquiry, Petitioner was informed by Joseph M. Brannon, Executive Director, PIC, that a CEO Concurrence Statement was not required for a JTPA Title I Program. At this point, Petitioner did not inquire of Respondent as to the need for the executed CEO Concurrence Statement even though the RFP indicated that the CEO Concurrence Statement was required at the time of submission. Joseph M. Brannon is not an agent of the Respondent and had no authority to change any of Respondent's RFP requirements. Although the proposal had been reviewed by, and had the concurrence of, the local PIC, the proposal, as timely submitted by the Petitioner on February 6, 1987, did not contain the CEO Concurrence Statement. The CEO, Harry H. Waldon, did execute, after the fact, a CEO Concurrence Statement dated January 14, 1987, which is the same date of the PIC Concurrence Statement and this CEO Concurrence Statement was transmitted to the Respondent by Mr. Brannon on March 6, 1987, some sixteen (16) days after the deadline of 3:00 p.m. on February 18, 1987. The evidence is insufficient to show that the CEO reviewed and concurred in the proposal prior to submission even though he was present at the meeting when the local PIC reviewed and concurred in the proposal. Even though Thomas E. Skinner, Jr. is the Executive Director of the Private Industry Council of Service Area 6, his testimony, which I find credible, was that his staff handled these matters and he was not aware of the necessity of CEO Concurrence Statement for a JTPA, Title I program. However, on this occasion, Mr. Skinner was acting on behalf of the Petitioner and it was his responsibility to submit a proposal that was responsive to Respondent's RFP, notwithstanding the conflicting advice from Joseph Brannon concerning the executed CEO Concurrence Statement. Although Respondent, independently of the RFP, advised proposal applicants of the necessity of achieving the 75 percent of performance goals in the previous year if requesting continued funding, a requirement for responsive proposals, there was credible evidence that Respondent did not relax the necessity of timely meeting this requirement by the date of proposal submission or relax any other requirement set out in the RFP. Petitioner's proposal was rated as non-responsive by the Respondent for failure to timely submit an executed CEO Concurrence Statement. The criteria adopted by the Respondent in the RFP is in accordance with the JTPA and the Governor's goals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Respondent enter a Final Order finding Petitioner's proposal as non-responsive and denying Petitioner's request for further review and scoring. Respectfully submitted and entered this 3rd day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-I684BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Findings of Fact 4 and 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 3. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 4. 5-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as legal argument. Adopted in Finding of Fact 3. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Thomas E. Skinner, Jr. Qualified Representative Amex Enterprises, Inc. Post Office Box 47035 Jacksonville, Florida 32247-7035 Carolyn Cummings, Esquire Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657
