The Issue The issues for consideration concern whether the Petitioner is qualified for licensure pursuant to Chapter 475, Florida Statutes, to act as a real estate salesman.
Findings Of Fact On March 22, 1990, Petitioner made application with Respondent to become licensed as a real estate salesman. In the course of that application he provided an affirmative answer to Question 7. Question 7 said, "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." In particular, Petitioner acknowledged that he had been in the possession of a controlled substance in a case dating from February 8, 1976 and received a fine of $100. He further acknowledged a case dating from June 15, 1983 in which he received one day in jail for disorderly intoxication and breach of peace. Finally, he acknowledged an October 26, 1983 charge of carrying a concealed firearm in which adjudication was withheld. These offenses form the basis for Respondent's intent to deny the application for licensure. Petitioner had applied for a real estate license in Florida on or about February 14, 1987. His application was denied. This lead to an administrative hearing in which the February 1976 and October 1983 offenses previously described were considered with another offense not the subject of the denial on this occasion. Based upon the criminal offenses and the failure to demonstrate rehabilitation following the commission of those offenses, Hearing Officer Diane K. Kiesling in her recommended order of December 8, 1987, recommended the denial of the license. That recommendation was accepted and a final order was entered on January 20, 1988, denying the license application. Given the denial in the prior case, Petitioner truthfully answered Question 14 in the present application and acknowledged Respondent's action turning down his request to receive a license in the previous submission. According to the present statement of denial because Petitioner had been denied before by action of the final order of January 20, 1988, Respondent would deny Petitioner's current application for licensure. In summary, Respondent continues to hold the opinion that based upon Petitioner's moral turpitude as related to his criminal history and insufficient demonstration that he has rehabilitated himself, Respondent is unwilling to license the Petitioner. That is an erroneous impression as Petitioner proved at hearing. Petitioner has not been arrested or incarcerated since the October 26, 1983 incident. He has been involved in the construction business since May, 1990, associated with the hauling and cleaning of debris from job sites. Petitioner operates this business. Prior to that time he had been employed by his father in a family-owned company, a roofing business. Anthony Speight is Petitioner's pastor in the Living Way Christian Fellowship Church International in Jacksonville, Florida. He has known the Petitioner for three years and is the godfather to Petitioner's son. Petitioner and his four children attend services every Thursday and Sunday at Reverend Speight's Church. Reverend Speight converses with the Petitioner on a daily basis and has found the Petitioner to be a moral and upstanding citizen. Petitioner has participated in church activities related to building and remodeling of adjunctive services at the church site. Reverend Speight knows the Petitioner to be person who spends his time working, at home with the children and at church. The work Petitioner has done for the church has been without compensation. Reverend Speight believes the Petitioner to be a trustworthy individual. Reverend Speight does not believe that Petitioner is insincere in his attempt to live an upstanding life. The pastor also made mention of the fact that the Petitioner is desirous of helping disadvantaged persons who are without housing. Warren A. Jones is a City Councilman in Jacksonville, Florida. He has known Petitioner throughout the Petitioner's life. His main involvement with the Petitioner was when the two men were growing up. As children he found the Petitioner to be a reasonable citizen from a good family background. He believes that Petitioner may have gone astray because of the environment in which he found himself. Mr. Jones is a real estate salesman. Lee Stradtner is a broker with Reed Realty Group in Jacksonville, Florida. He also teaches as a real estate instructor at Florida Community College in Jacksonville, Florida. Petitioner took a course from Mr. Stradtner in Salesman's Principles and Practices I in January, 1990. The is a preparatory course for qualifying to take the real estate salesman's examination in Florida. The course has components that deal with ethical considerations emphasizing the fiduciary relationship between real estate persons and their clients. Stradtner found Petitioner's attendance at this course exemplary. Petitioner passed the final examination with a score of in excess of 90 per cent correct which was the highest grade in the class. Petitioner freely explained to Mr. Stradtner his prior criminal law problems. Mr. Stradtner encouraged Petitioner to reapply for licensure based upon Petitioner's attendance, performance and responses in class. He believed that Petitioner understood agency and fiduciary relationships and the fact that real estate professionals are involved with positions of trust. Outside the class Petitioner discussed with Mr. Stradtner the circumstances in an area of Jacksonville, Florida, known as Springfield. This discussion related to a project that Mr. Stradtner was working on at the time and that Petitioner showed an interest in. It pertains to renovation and restoration and the provision of affordable housing in close proximity to the down town area. This would make housing available for all segments of society. Mr. Stradtner has discussed the possibility that the Petitioner might work with Mr. Stradtner's realty group; however, Mr. Stradtner is not the broker in charge and an interview would have to be conducted with the managing broker in that firm before hiring Petitioner (assuming licensure). All comments from the witnesses testifying in behalf of the Petitioner as reported in these findings of fact are credited.
Recommendation Based upon the findings of facts and the conclusions of law, it is, recommended that a Final Order be entered which accepts the Petitioner's application for licensure as a real estate salesman. RECOMMENDED this 10th day of January, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 day of January, 1991. COPIES FURNISHED: Walter Lee Jordan 10770 Anders Boulevard Jacksonville, FL 32216 Joselyn M. Price Assistant Attorney General State of Florida, Department of Legal Affairs 400 West Robinson Street, Suite 107 South Orlando, FL 32801 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802
The Issue Whether or not Respondent Employer committed an unlawful employment practice by discrimination against Petitioner on the basis of her religion.
Findings Of Fact Petitioner is a practicing Christian. Her Christian denomination either is not of record or could be "Child of God." In any case, Petitioner believes that she is a child of God and that He resides within her as a life-changing force. She considers Jesus to be her Saviour; she does not consider herself a "religious person," but does consider herself to be a Christian. On June 26, 2000, Petitioner was hired by Respondent Surrey Place Nursing Home in Live Oak, Florida, as a Licensed Practical Nurse (L.P.N.) Her immediate superiors certainly knew that Petitioner was "strong in her faith" and would not violate what she perceived to be Christian doctrines in order to take the job. By inference, it is found that the Surrey Place chain of command also knew this as of Petitioner's date of hire. On the date of hire, Petitioner informed Respondent of specific accommodations that she would require if she were to accept employment with Respondent. At that time, her requested accommodations only involved scheduling. To the end of accommodating Petitioner's religious beliefs and her specific requests at the time of hire, Respondent gave Petitioner every Sunday and every Wednesday night off so that she could attend church services or activities. One other Christian employee was also not required to work on Sundays for religious reasons. On Friday, July 27, 2001, in Petitioner's presence, the Unit Director, Lucille Gwinn, informed a Staff Nurse, Theresa Croft, that Resident P.C. liked a toddy (in this case, a jigger of Jack Daniels whiskey) before she went to bed each night and again upon arising each morning, to "relax." P.C. is a 95-year-old female who, prior to admission to Surrey Place, had a drink of Jack Daniels in the morning and sometimes in the evening for several years. Respondent considers it a duty, pursuant to federal guidelines for long-term care nursing homes, to provide a "homelike environment" and provide, as closely as possible, the customary routines of its residents. On July 27, 2001, P.C. was Petitioner's patient, due to Petitioner's assignment to the East Wing of Surrey Place. Petitioner immediately informed the Unit Director that she did not give out alcohol under any circumstances because it violated her Godly beliefs. The Unit Director told Petitioner that if it were a doctor's order, Petitioner must give the Jack Daniels to her patient, "period." That night, the Unit Director instructed Ms. Croft to write the order for P.C.'s toddy. Ms. Croft did so. Upon check-out for her shift, that night, Petitioner explained her position to the Director of Nursing (DON). The DON told Petitioner that if it were a doctor's order, Petitioner must follow it "no matter what." Petitioner told the DON that, as a Christian, Petitioner could not administer drinking alcohol to another person and would not administer drinking alcohol to another person. A discussion then ensued wherein the DON stated that she was a Christian too, but that religion had to "stay out the door," and "Well, I guess that's your two weeks' resignation." Petitioner asked if she were to report for work the next day, Saturday, as scheduled. The DON stated that Petitioner should not report, because Petitioner had refused to follow the doctor's order and that constituted Petitioner's resignation. Later that Friday night, the DON telephoned Petitioner at home and told Petitioner that she had not asked for Petitioner's resignation and Petitioner was to report for work as scheduled the next day, Saturday. Petitioner agreed to report for her Saturday shift, but stated that she still refused to give the toddy on religious grounds. The DON had the last word in the telephone conversation, though, stating, "You must follow the physician's order." Petitioner reported to work on Saturday, as usual. At that time, Petitioner observed that beside the Staff Nurse's notes to administer the toddy to P.C., morning and night, the Unit Director had since written "for medicinal purposes." Petitioner does not, however, suggest that this was other than a valid physician's order, which had been received by telephone. It is therefore found that there was a valid physician's order in P.C.'s chart for "one-half ounce alcohol each morning and each evening." Later on the same Saturday, P.C.'s daughter delivered to the nursing station a bottle of Jack Daniels, wrapped in a paper towel with only the neck of the bottle and top exposed. This was placed in the refrigerator in the medications room. Petitioner testified, without refutation, that Lily Tillie Hass, her Saturday shift's Charge Nurse, agreed to give the toddy to P.C. that day. It is also unrefuted that this was not an unusual occurrence, because whenever there was a problem with the administration of a new medication or the performance of a new procedure, the several nurses on shift would tackle it as a "team approach." On Monday, July 30, 2001, the DON told Petitioner that she had contacted the Board of Nursing, which had told her to write up a complaint against Petitioner if Petitioner refused to follow a doctor's order. The DON stated that "for medicinal purposes" means that it is a doctor's order and that a resident's rights came before Petitioner's rights. Petitioner continued to refuse to administer the Jack Daniels to P.C. The DON requested that Petitioner give her reasons in writing for refusing to follow the doctor's order. On Tuesday, July 31, 2001, Petitioner did not have the requested written reasons finished and told the DON so. The DON loudly demanded that Petitioner give her something in writing that day. The women's conversation then attracted the attention of other staff members passing by. Petitioner said that she could not rush something so important and demanded to know if she would be written-up for this delay in providing her reasons for refusing to serve the toddy of Jack Daniels. The DON left the conversation in order to attend a Department Head Meeting. After the Department Head Meeting, the DON asked Petitioner to meet her in the solarium. On the way to the solarium, Petitioner asked the DON if the DON would help someone get an abortion, and the DON answered that she would not. Petitioner told the DON that Petitioner's refusal to personally administer Jack Daniels to P.C. was "the same thing with myself." In the solarium, Respondent's Administrator, DON, and Risk Management Coordinator met with Petitioner. They pointed out that when she was first hired, Petitioner had signed an agreement that her duties would include "medication administration as ordered by physician." Petitioner acknowledged that she had. Petitioner then stated to them that alcohol administration was against her religious beliefs and she would not offend her "Godly values," by administering Jack Daniels whiskey. At no time material did Petitioner object to the portion of her job description requiring her to give out or administer medications ordered by a physician. Petitioner, herself, uses cough syrups she knows contain alcohol, without regard to the percentage of alcohol contained in them. Petitioner has administered other medications containing alcohol to her patients in Respondent's facility, pursuant to a physician's order. Petitioner also does not object to rubbing alcohol externally on herself or her patients. Her complaint is that she believes a commercial alcoholic beverage, such as Jack Daniels whiskey, which is sold over the counter and which normally is used for recreational drinking, is forbidden by her personal moral beliefs arising out of her Christian denomination's interpretation of the Christian Bible. Without commenting on the "rightness" or "wrongness" of Petitioner's belief system, the undersigned is convinced that Petitioner is sincere in her beliefs. The discussion in the solarium on July 31, 2001, between Petitioner and Respondent's management team, started upon the premise that Petitioner was bound to follow any order of a doctor, but digressed into differing concepts of scriptural interpretation. The Administrator referred Petitioner to portions of the Christian Bible which he believed permit the giving and drinking of wine. The DON suggested angrily that no one was capable of persuading Petitioner. There was a retort by one or more of the three management representatives that Petitioner was not a better Christian than other Christians employed by Respondent who were willing to administer Jack Daniels to P.C. It was repeatedly suggested that if other Christians had to "leave their religion outside the door," so did Petitioner. Petitioner continued to refuse to administer the Jack Daniels based upon her personally selected Bible passages. Ultimately, the Administrator stated that by refusing to serve the Jack Daniels to P.C., Petitioner would be resigning. A dispute arose over the difference between involuntary and voluntary resignations. The management employees insisted that Petitioner was "voluntarily resigning" by her refusal to follow a doctor's order. Petitioner denied that she was resigning. Upon the Administrator's instructions, Petitioner completed only her immediate duties and signed out of the building. Petitioner considered herself involuntarily terminated as of July 31, 2001. Respondent's management team considered Petitioner voluntarily resigned as of July 31, 2001. Petitioner submitted the requested reasons for refusing to serve P.C. the Jack Daniels in a letter prepared August 19, 2001. In this letter, Petitioner cites multiple Bible quotations on the point of not getting drunk. Without commenting on the accuracy or inaccuracy of Petitioner's scriptural interpretation, it is found that Petitioner's interpretation is one possible interpretation of the scriptures cited. Respondent's Risk Management Coordinator filed a Complaint with the Agency for Health Care Administration. Petitioner responded, citing selected parts of the Christian Bible. The case was closed without a determination of probable cause, and a Letter of Guidance was issued which specifically indicated that it was not "discipline," under the Nurse Practice Act, Chapter 456, Florida Statutes. Petitioner sought unemployment compensation (UC) and was initially granted benefits on the basis that Petitioner had "voluntarily quit rather than perform a task which went against her religious beliefs. The Claimant has shown good cause for quitting." Respondent Surrey Place protested the initial UC ruling. Petitioner defended on the basis of The Civil Rights Act of 1964 or Title VII, and Habakkuk 2:15 (Old Testament Prophet) which reads: Woe unto him that giveth his neighbor drink, that puttest thy bottle to him, and makest him drunken also, that thou mayest look on their nakedness! Petitioner also advised the UC officials that: Although I did not give the alcohol to the resident, other nurses voluntarily gave it as ordered. Though other nurses give the alcohol willingly my superiors adamantly insisted it be given by the writer because I was assigned to that resident and that I must follow the doctor's order. I was also told that I have to leave my religion out the door. Ultimately, the UC Appeals Referee found that, pursuant to Chapter 443, Florida Statutes, Petitioner had committed "misconduct connected with work," constituting "a willful or wanton act or course of conduct in violation of the worker's duties and obligations to the employer." The initial UC Award was reversed. Petitioner testified that for a little while after July 31, 2001, she had attempted to find work as an L.P.N. However, she also testified that she has been employed as a babysitter for one or two small children since August 9, 2001. Accordingly, any back pay that Petitioner may be awarded after August 9, 2001, should be offset by the amount she has made in her employment as a babysitter. Because those respective amounts are not in evidence, no calculation can be made. Petitioner never specifically testified that she was one of 15 employees of Respondent. However, the undersigned has considered the evidence as a whole. It is unclear whether each "Wing" of Respondent's Live Oak facility also constituted a single "Unit." It is clear, however, that there was at least one Unit Director (Lucille Gwinn) on the East Wing, where Petitioner was assigned as of July 27, 2001, and that if there was an East Wing there had to be a West Wing, if not more wings in Respondent's facility. It is also clear that there were a minimum of three nurses (including Petitioner) per shift (a Charge Nurse and two Staff Nurses), per wing. Assuming eight hour shifts and three shifts per day, with at least an East and West Wing, plus an Administrator (Al Robbins), Risk Management Coordinator (Kelly Hensley), DON (Sherrill Hines), and other "Department Heads," it is found that Respondent, a Florida- licensed nursing home in Live Oak, Florida, with corporate offices in Palm Beach, Florida, employs in excess of 15 regular employees. Therefore, Respondent is an "employer," as defined in Chapter 760, Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether the Petitioner qualifies for a consumer's certificate of exemption as a "Religious Institution" or "Church" or as a "Charitable Institution" as defined in Chapter 212, Florida Statutes.
Findings Of Fact Petitioner was incorporated in the State of Florida as a nonprofit corporation on May 11, 1995. On February 21, 1995, Petitioner filed an application for a consumer's certificate of exemption as a charitable institution. The Department under its statutory powers denied the application and advised the Petitioner of his right to a hearing on his application. George B. Cooper is the incorporator president and treasurer of Petitioner. Mr. Cooper serves as the pastor of the Petitioner. Mr. Cooper is a Seventh Day Adventist and attended religious training with that denomination. He is not an ordained minister. The business office and business address of Petitioner is in Jacksonville, at the home of a friend of Mr. Cooper. Mr. Cooper resided in Jacksonville initially, and started his missionary activities there. He subsequently moved the mission to Daytona Beach, and resides in Jacksonville and overnights in Daytona Beach when engaged in mission work. Mr. Cooper leases one-third of a private residence located at 610 Winchester Street, Daytona Beach, Florida. Mr. Cooper provided receipts for $1075 for leasing this space from February, 1995, until July, 1995, and a letter from the landlord which indicates that she is aware that Mr. Cooper conducts religious services there. The leasehold includes a large meeting room with chairs for persons attending services and a podium from which Mr. Cooper leads religious services which include prayer, song and preaching. A small room is available with a cot and sleeping bag to provide a place for homeless to overnight. Mr. Cooper sleeps at the mission when in Daytona Beach. In addition the leasehold includes access to bath and kitchen facilities. Clothes and food are also stored at the mission which Petitioner provides to persons in need. These clothes and food items are gifts in kind obtained from individuals and organizations. Mr. Cooper does not maintain complete records of the items given to him or of the items which he gives away. Mr. Cooper testified that he received $4667 between May and December, 1994 which included $4000 which he received from distribution of religious tracts and pamphlets. Mr. Cooper testified that his expenditures between May and December, 1994 were $5150. This included expenses of $2100 for travel, rent and utilities, $383 for office materials, $100 for literature and gifts of food, clothes and money in the amount of $2567. None of the gifts of money were to other religious or charitable organizations. The Petitioner's mission in Daytona Beach provides clothes, food and minimal temporary shelter to homeless persons and others in need, together with preaching the gospel. To this end, Mr. Cooper conducts church services at regular times during the week and is available to provide care to those who come by his mission 24 hours a day when he is in Daytona Beach.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the application of the Petitioner as a religious institution be approved. DONE and ENTERED this 7th day of September, 1995, in Tallahassee Florida STEPHEN F. DEAN, 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 7th day of September, 1995. APPENDIX The Department filed proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Respondent's Recommended Order: Findings: Paragraphs 1, 2 Paragraphs 1, 2 Paragraphs 3, 4 Subsumed by Paragraphs 3, 4 Paragraph 5 Subsumed in part in 3, 4; and rejected in part as irrelevant Paragraphs 6, 7 Subsumed in Paragraph 1 Paragraph 8 Irrelevant There is no allegation that the application was incomplete Paragraph 9 Irrelevant except that the Department automatically considers alternative basis for exemptions Paragraph 10 Subsumed in Paragraph 1 Paragraph 11 Subsumed in Paragraph 6 It is irrelevant that there are no signs or ads or telephone These are not required of a church. Paragraph 12 Deleted from Respondent's findings Paragraph 13 Statement of Case Paragraph 14 The listing of items is not necessary as a finding. Paragraph 15 Subsumed in Paragraph 6 Paragraphs 16, 17 Subsumed in Paragraph 4 Paragraph 18 Subsumed in Paragraph 5 Paragraph 19 Irrelevant and invades the province of the fact finder Paragraph 20 Conclusion of Law COPIES FURNISHED: George B. Cooper, Pastor 2172 McQuade Street Jacksonville, FL 32209 and 610 Winchester Street Daytona Beach, FL 32114 Nancy Francillon, Esquire Lisa M. Raleigh, Esquire Assistant Attorneys General Office of the Attorney General The Capital-Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of obtaining a real estate license by means of misrepresentation or concealment by failing to disclose a plea to a charged crime in her past, in alleged violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing and regulating the entry into practice and the practice of real estate sales. Including within its responsibility is the duty to prosecute administrative complaints for alleged violations by licenses of Chapter 475, Florida Statutes, and related rules. Respondent, Patricia D. Mackovic, at all times pertinent hereto, has been a licensed Florida real estate salesperson. She was issued license number 0640501 in accordance with Chapter 475, Florida Statutes, in the later part of 1996. On or about January 25, 1984, the Respondent plead nolo contendre to a charge involving welfare fraud (failure to disclose a material fact). She was ordered to pay restitution and placed on probation for two years by the circuit court of Escambia County, Florida, but adjudication was withheld. As a result of her discussions with the prosecution in that case and the welfare case worker involved, she was of the belief that she had mistakenly obtained welfare benefits that she was not entitled to (apparently because her income was higher than the relevant limit). She was of the belief that the matter was ultimately dismissed and that, upon paying restitution nothing else remained of the charges. She had a genuine, good faith belief that there was not actually a conviction. She also believed at the time, based upon her reading of the judge's order and discussing the matter with her attorney and the prosecutor, that the record involved in the matter would be under seal in any event. On or about July 18, 1996, the Respondent submitted an application for licensure as a real estate salesperson to the Petitioner agency. When she applied for that license she was asked on the application form whether she had ever been convicted of a crime, found guilty or entered a plea of nolo contendre, even if adjudication was withheld. If she answered in the affirmative, she was required to attach an explanation of the circumstances and facts. The question applies to any violation of law without regard to whether the applicant for licensure had been placed on probation, had adjudication withheld, was paroled or pardoned. The Respondent responded "no" to this question. She signed the certification at the end of the application, swearing that all answers and information contained in the application were true, correct and complete. Respondent remembered being arrested at 6:30 a.m., by two sheriff's deputies, finger-printed concerning the above charge and going to court. She remembers entering a discussion with the judge and ultimately pleading nolo contendre and being given two years of probation, making restitution of the disputed amount of money concerning the subject welfare payments. The Respondent believed the matter had been dismissed and that it did not constitute a conviction on her record at the time she answered the subject question on the application for licensure. The Respondent believed at the time she answered the question that the charge against her had been dismissed as a consequence of her serving probation (which was shortened by the judge to less than two years), and as a consequence of her making restitution of the moneys involved. The language of the judge's order supports her in that belief to the extent that the judge recites that the "ends of justice and the welfare of society, do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. . .". The Respondent testified that she now understood that question nine required disclosure of a conviction, an "adjudication withheld" or a plea, including a plea of nolo contendre. She had answered in the negative, however, because, at the time she answered the question, she believed, based upon the language in the judge's order, her discussion with the judge and her efforts to have the matter resolved after the initial hearing, which resulted in the probation time being reduced, that the matter had been dismissed on the basis of her restitution and serving the reduced probationary period. Thus she had an honest belief at the time she answered the question that she had not been convicted. Because she had an honest belief at the time, even if mistaken, that she had answered the question accurately, she cannot be determined to have committed a fraudulent act or representation, or an act of misrepresentation or concealment in order to obtain her real estate license. In making this factual finding, the undersigned has observed the Respondent's candor, demeanor, and apparent contrition in describing the incident and circumstances involved. The undersigned determines her version of events to be credible and that she never intended to falsely answer the subject question.
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 be found not guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that that Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Patricia Mackovic 5796 Utica Avenue Pensacola, Florida 32507 Ghunise Coaxum, Esquire Department of Business and Professional Regulation Suite N-308 400 West Robinson Street Orlando, Florida 32801-1772 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999. Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32302-1900
The Issue Whether the Petitioner, Spiritual Kingdom of God the Creator of All Universes, should receive a consumer's certificate of exemption.
Findings Of Fact The Respondent is the state agency charged with the administration of Chapter 212, Florida Statutes. On or about February 4, 1999, the Petitioner submitted an application for consumer’s certificate of exemption. Such application sought exemption as a religious organization. On February 17, 1999, the Department issued a letter to the Petitioner acknowledging receipt of the application and requesting additional information about the Petitioner in order to complete the application review. On March 15, 1999, the Department issued a second notice to the Petitioner that mirrored the prior request for additional information. On April 26, 1999, the Department issued a third letter that advised Petitioner that it had failed to demonstrate that it meets the criteria as a religious institution as defined by Section 212.08(7), Florida Statutes. This letter outlined the criteria that would support the approval of the certification sought by the Petitioner. On June 11, 1999, the Department issued a Notice of Intent to Deny the Petitioner’s application for a consumer’s certificate of exemption. Thereafter the Petitioner requested an administrative hearing to contest the agency’s decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying the Petitioner’s application for a consumer’s certificate of exemption. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1999. COPIES FURNISHED: Wendell Phillips Spiritual Kingdom of God the Creator Post Office Box 331228 Coconut Grove, Florida 33233-1228 George C. Hamm, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Joseph C. Mellichamp, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact State Project Job No. 87000-3696 calls for the construction of the Sixth District Office Building in Miami, Florida, at the intersection of State Road 836 and State Road 821. On October 30, 1985, DOT accepted and opened five sealed bids on State Project No. 87000-3696. At the bid opening, Wilson's bid of $2,021,573.80 was the apparent low bid. Archer Western's bid of $2,055,491 was the next lowest bid. The amount of both of these bids were within the estimate of DOT. The apparent low bidders determined solely by the lowest dollar amount bid, was Wilson, whose bid was the apparent low bid by $33,917.20. Pursuant to Rule 14-78.03, Florida Administrative Code, DOT set Disadvantaged Business Enterprise (DBE) and WBE participation requirements in the bid documents for this project with a contract goal that 10% of the contract be performed by DOT certified DBEs and that 2% of the contract be performed by DOT certified WBEs. Subarticle 2-5.3.2; as amended of the bid documents provides: For all contracts for which DBE and/or WBE contract goals have been established each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. It also states that only DOT certified WBEs may be counted toward WBE goals. Subarticle 205.3.3, as amended, of the bid documents provides: In evaluating a Contractor's good faith efforts the Department will consider: Whether the Contractor at least seven days prior to the letting, provided written notice by certified mail return receipt requested or hand delivery with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and WBEs including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifications. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts. Wilson indicated on the D.B.E./W.B.E. Utilization Form No. 1, which form was part of the bidding documents, that it intended to use a WBE contractor to perform 2% of the contract amount and DBE contractors to perform 20% of the contract amount. Wilson did not indicate on the Form whether the DBEs and WBE were DOT certified. In actuality, only 1.6% of the contract amount was to be performed by the WBE. Additionally, the WBE contractor and two of the DBE contractors were not certified by DOT and therefore did not count toward the contract goals. Fifteen percent of the contract amount was to be performed by DOT certified DBEs and 0% was to be performed by WBEs in the bid proposal of Wilson. The D.B.E./W.B.E. Utilization Form No. 1 directs the bidder that "If full compliance with the contract goals for this project are not met; submit sufficient documentation with the bid proposal to demonstrate that good faith efforts were made to meet the goals. This form also instructs the bidder that failure to submit sufficient documentation to demonstrate good faith efforts will be just cause to consider the bid nonresponsive and to reject the bid. The good faith efforts evaluation of a bid proposal is undertaken by DOT when a potential contractor has not met the WBE of DBE goals for a particular project. Failure to submit sufficient documentation of good faith efforts when a DBE/WBE goal is not met is just cause for DOT to consider a bid to be non-responsive. Wilson knew that if it did not follow the bid specifications that its bid would be deemed by DOT to be non-responsive. Wilson submitted a good faith efforts package with its bid to establish its attempt to meet the DBE and WBE goals. This package contained a letter dated October 28, 1985, in which Herbert Jaffess Wilson's Chief Estimator explained Wilson's efforts to obtain bids from DBE and WBE subcontractors. These efforts were to: 1) advertise in the Miami Herald for three days regarding a desire for these bids; 2) telephone DBEs and WBEs to request bids and to advise them that Wilson would help them; 3) mail letters to 32 DBEs regarding bids; and 4) list its name in the Dodge reports on a number of days as one of the interested bidders on this project. Mr. Jaffess further stated that it is the policy of Wilson "to employ the lowest bidder on a project; provided they are sufficiently experienced and are financially responsible, regardless of any other consideration." DOT personnel evaluated Wilson's bid and good faith efforts documentation in accordance with the bid documents. That evaluation found that the subcontractor listed in Wilson's bid as a WBE would only perform 1.6 percent of the work and that it was not DOT certified. Additionally; Wilson's good faith efforts documentation was insufficient to establish Wilson's good faith efforts for the following reasons: 1) only three of the DBEs and A WBEs to whom letters were mailed were DOT certified; 2) Wilson did not indicate when the letters were mailed; 3) Wilson did not solicit all DOT certified WBEs in the areas of work available for this project; 4) two of the five bidders met the DBE and WBE goals on this project; and 5) Wilson's failure to submit information concerning the other inquiries delineated in the bid documents in this regard. DOT also found that Wilson did not have a history revealing that it had on other contracts within the past six months utilized DBEs and WBEs. Consequently, Wilson's bid was deemed nonresponsive and was rejected. Wilson's bid submission did identify all DBE and WBE firms, whether or not certified by the DOT; that were to participate in the contract; did describe work each named DBE and WBE would perform with request to the contract; and did specify the dollar amount of participation by each named DBE and WBE firm participating in the contract. However the bid did not achieve the WBE goals even if the non-DOT certified WBE was included. Wilson's good faith efforts submission included a letter from Herb Jaffess dated October 28, 1985, to the DOT detailing Wilson's efforts to obtain DBE and WBE subcontractors, including the placement of ads in The Miami Herald, calling or writing to 40 DBE or WBE firms (few of which were DOT certified), seeking their participation in the contract; and notice of the contract bidding in the Dodge Reports. The Dodge Reports is an industry report which includes a daily listing of contracts out for bid that allows subcontractors to know what projects are being bid and which contractor is preparing a proposal for any particular project. Wilson's good faith submission indicated that it wrote letters to DBEs and WBEs soliciting their participation as subcontractors on the bid for the construction of the Sixth District Office Building, however, Wilson did not send the letters certified mail, return receipt requested, and did not submit receipts to show the letters were mailed. Wilson's good faith submission indicated that the solicited DBEs and WBEs were informed how to obtain information about and how to review and inspect the contract plans and documents. However potential DBE and WBE bidders were merely told that the plans and documents were available for inspection at Wilson's office. Wilson's bid submission indicated that it selected economically feasible portions of the work to be performed by the DBE and WBE firms, however, Wilson did not submit all quotations received from DBEs and WBEs and for those quotations not accepted, did not submit an explanation of why the DBE or WBE was not used. Wilson did not meet the goal for the project, but two contractors did. Archer Westerns the second low bidders met the goals with 10.6% participation for DBEs and 4.2% participation for WBEs. Wilson's bid submissions including the good faith submission did not comport with the requirements of the bid specifications. Therefore DOT could not deem Wilson's bid to be responsive. DOT notified Wilson by letter dated November 18, 1985, that Wilson's bid had been declared nonresponsive due to its failure to meet WBE requirements. On December 9, 1985, DOT, posted in Tallahassee an intent to award the contract for this project to Archer Western. No federal funds are involved in this project. On December 31, 1985, the Final Order in Capeletti Brothers, Inc. v. DOT, DOAH Case No. 85-3340R, was rendered, declaring Rule 14-78, Florida Administrative Code, invalid as to projects in which no federal funds would be expanded. On January 15, 1986, DOT filed timely Notice of Appeal from this Final Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED that a Final Order be entered rejecting the bid submitted by Robert F. Wilson Inc., as being nonresponsive and awarding the contract on State Project No. 87000-3696 to Archer Western Contractors, Ltd. DONE and ENTERED this 19 day of February 1986, in Tallahassee. Florida. DIANE K. KIESLING 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 19th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 65-4352BID 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 to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 1. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Finding of Fact 1. Rejected as not supported by the competent substantial evidence. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 11. Rejected as not supported by the competent substantial evidence. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 16 Rejected as not supported by the competent substantial evidence. Rejected as not supported by the competent substantial evidence. Rejected as not supported by the competent substantial evidence. Adopted in substance in Findings of Fact 5 and 17. Adopted in substance in Finding of Fact 2. Ruling on Proposed Findings of Fact of Respondent 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 1. 3. Adopted in substance in Finding of Fact 7. 4. Adopted in substance in Finding of Fact 2. 5. Adopted in substance in Finding of Fact 5. 6. Adopted in substance in Finding of Fact 8. 7. Adopted in substance in Finding of Fact 4. Adopted in substance in Findings of Fact 14, 16, 17 and 18. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Rulings on Proposed Findings of Fact of Intervenor 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 3. Adopted in substance in Finding of Fact 3. 4. Adopted in substance in Finding of Fact 4. 5. Adopted in substance in Finding of Fact 5. 6. Adopted in substance in Finding of Fact 17. 7. Adopted in substance in Finding of Fact 6. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 22. COPIES FURNISHED: Mark Herron Esquire Suite 415, First Florida Bank 215 S. Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Larry D. Scott, Esquire Department of Transportation Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 John C. 0'Rourke, Esquire 0'Brien 0'Rourke, Hogan and McNulty One North LaSalle Street Chicago, Illinois 60602 Paul A. Pappas, Secretary Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Roger Williams College was chartered as a non-profit corporation December 11, 1975, and was excluded from licensure requirements from 1976 through 1981 pursuant to Chapter 246, Florida Statutes. In 1982 Chapter 246 was revised. Prior to the revision institutions such as Respondent were granted exclusions from licensure upon application therefor by the institution. The repeal and reenactment of Chapter 246 in 1982 required certain conditions be shown by the institution before exemption from licensure requirements would be granted. These requirements were furnished to all colleges and universities in Florida by Petitioner. By letter dated January 31, 1983 (Exhibit 1), Respondent was furnished appropriate forms upon which to apply for exemption and requested to provide certain information required by statute. The information submitted by Respondent included a catalog which: Was not dated. Contained an address in Tampa and an address in Dade City. In 1979 Respondent had advised Petitionerits current address was Tampa. Did not contain course descriptions. Stated requirements for doctor of ministry degree include 90 semester hours in residence and lists courses in 100-400 level. On page 8 the catalog states that subjects numbered 100-499 are especially for under- graduate credit, and those in the 500's are for graduate credit. Contained no specific course requirement for the degree of Master of Religious Education or Doctor of Religious Education degrees. Represented the location of the college at which its services will be offered as 5th and Florida, Dade City, Florida, while no such facility exists. States all admissions are under the control of the Dean of Admissions, yet such a position is not shown in the catalog on the administrative staff. Contained no required standards for students to achieve satisfactory progress. The address of the college at 13027 North 52nd Street, Tampa, Florida, is owned by Andrew McAllister, the president of Respondent, and is a brick two- story building looking like the other residences in the vicinity. No sign or other indication is posted to identify this building as Roger Williams College. Copies of degrees other than Bachelor of Theology or Bachelor of Religious Education were never provided by Respondent as requested by Petitioner.
Findings Of Fact At some point in late 1984 or early 1985, Respondent, DOT, solicited bids for its Project Number 77030-3510 to be accomplished in Seminole County, Florida. Three bids were submitted. The bid by Petitioner, Macasphalt, was in the amount of $186,367.05. The two other bidders were Martin Paving Company, whose bid was for $196,391.99 and Orlando Paving whose bid was in the amount of $213,054.56. Petitioner's bid was the lowest by approximately $10,000.00. This particular project required the contractors to meet certain goals in the area of Disadvantaged Business Enterprises (DBE) and Women-Owned Business Enterprises (WBE). The goals for this project were 7% for DBE and 3.05% for WBE. In its bid, Macasphalt showed that it would award 20.14% of the contract to DBE's but only 2.01% of the contract to WBE's. Martin Paving Company, on the other hand, whose bid was approximately $10,000.00 higher, indicated that it would award 19.19% of the contract to DBE's and 3.04% of the contract to WBE's. Orlando Paving, which was the highest bidder, showed 2.4% WBE. As a result of the fact that Petitioner failed to achieve 3% WBE, whereas the second lowest bidder exceeded the 3% WBE goal, Respondent declared Petitioner's bid nonresponsive for failure to meet the WBE goal and recommended award of the contract to the second lowest bidder, Martin Paving, even though Martin's bid was approximately $10,000.00 higher. The goals set by DOT must be met at the time of letting of the contract. If a contractor cannot meet these goals, he must submit satisfactory evidence of his good faith efforts to meet them in order to be considered responsive. In regard to the goals, DOT issues a monthly list of certified DBE/WBE contractors listed by the type of work they are qualified to do and the geographical area in which they operate. According to Mr. LaLonde, Macasphalt routinely sent out letters to a majority of the subcontractors they feel could do the work generally and a follow-up letter is sent monthly to those subcontractors who do the type of work needed in a particular contract. These letters are sent monthly because Macasphalt bids frequently on DOT contracts and bid lettings are done on a monthly basis. This procedure gives, they feel, DBE's and WBE's information on jobs on which the Petitioner is bidding and keeps them informed. In the instant case, to solicit WBE's, on January 9, 1985 Petitioner sent out letters by certified mail to 47 DBE/WBE's requesting bids on several projects including the one in question here and naming areas in which it anticipated issuing subcontracts. Items to be subcontracted on the instant project included. barricades and signs guard rails landscaping painting and striping trucking, and concrete. No solicitation was made of DBE/WBE's for quotes on asphalt work because that is Petitioner's prime business and it is, in the opinion of its officers, not feasible to subcontract work they do themselves. When it became obvious that Petitioner could not achieve the 3.05% WBE goal, Petitioner, pursuant to the terms of the contract documents, submitted a summary of its good faith efforts to achieve the WBE goals with the contract bid. The Petitioner's summary of good faith effort includes a "remarks" sheet on which the following comments exclusively are made: "We have exceeded DBE goal with a total of 20.14%. However, have only attained 2.01% FBE goal. All subcontract items except guardrail were reflected in DBE or FBE quotes received. No DBE or FBE quote was received for guardrail item." In addition, Petitioner submitted a form letter entitled, "Good Faith Efforts" apparently used in numerous contracts, which requires only the insertion of two numbers and two dates and copies of two different letters in blank sent to subcontractors on apparently a routine basis. In addition to the above, Petitioner submitted two copies of DOT's DBE/WBE Directory, one dated September, 1984 and the other dated January, 1985 in which various subcontractors are identified with check marks, the explanation for which is contained in the form letter referenced above. No explanation was made as to why some WBE's were not solicited. Upon receipt of Petitioner's bid with the good faith explanation included, it was submitted to Respondent's Good Faith Efforts Review Committee. This committee deals only with an analysis of the good faith efforts made by bidders. It has been in operation since its creation in August, 1984 and applies the standards established in Rule 14-78, F.A.C. Here, the committee evaluated Petitioner's good faith effort as outlined in the material submitted with the bid and, based on Petitioner's submission, concluded that Petitioner was non-responsive because its good faith efforts, as documented, were insufficient. The committee based its conclusion on the following considerations: Petitioner did not meet the seven day requirement for notice by certified mail. The sample letter indicated "certified mail" but no copies of receipt showing it was sent by certified mail or to whom it was sent by certified mail were included. All potential subcontractors (WBE's) were not contacted. The ability of the contractor to do the work himself "asphalt) will not justify failing to achieve the goal. Whether or not other bidders met the goal. The remarks sheet was inaccurate and inadequate. The explanation about failing to solicit from those subcontractors who did not do business in Seminole County is inconsistent. Some were solicited and some were not. One contractor (Fran) who operates in three categories and who works statewide, was not solicited by the Petitioner in any category. The criteria as set forth in Rule 14-78 are not exclusive or necessarily determinative. There is no specific definition of good faith efforts. The committee is given the latitude to make a judgment measure of the bidder's efforts opposed to the criteria set forth in the rule. Mr. Pitchford, Chairman of the committee, indicated that after the committee had been in operation for a while, the approach taken toward looking at the criteria set forth in the rule was more strictly and severely applied. No notice of this change in approach was set to any bidder, however Petitioner contends that this was misleading and that it submitted them on a previous successful demonstration of good faith efforts. In October, 1984 it submitted a bid on a contract which did not meet the DBE goal. Nonetheless, the evidence of good faith which it submitted at that time was not questioned and Petitioner was awarded the contract. This good faith information was the same kind of information as submitted here which was considered inadequate. No documentation to support any of this was forthcoming, however. Since each case must be taken and considered on its own merits, even if true, this is not necessarily inconsistent. Petitioner readily admits that it did not submit requests for bids to al; DBE/WBE subcontractors in the directory. However, it does claim that for the most part, it submitted solicitations to every WBE listed in the directory that worked in the specialty needed and in the geographical area of the project. Petitioner defends its exclusion of potential subcontractors on the basis that, for example, they had no experience with those subcontractors and were not familiar with them. In most cases, Petitioner left out companies that were not known to it. Mr. LaLonde could not be sure whether Petitioner solicited any potential subcontractor not solicited by Petitioner previously. He is certain, however, that Petitioner did solicit all subcontractors on the list who had been solicited previously. In any event, it is important to the Petitioner to know the subcontractors and how they perform because Petitioner, as the prime contractor, is responsible for the work whether it or its subcontractor accomplishes it. It is for this reason, the lack of familiarity with a subcontractor and its performance, that it did not solicit some WBE's which operate statewide. Petitioner has used many WBE's before and has never failed, it claims, to meet WBE goals prior to this occasion. It has previously failed to meet DBE goals, however, but still was awarded the contract if it was the low bidder. It is apparent, then, that if the above is true, Petitioner's demonstrated good faith efforts were considered satisfactory on those occasions. Based on that experience, Petitioner felt that the procedures used here which it claims had previously been demonstrated to be satisfactory, were again sufficient. It is significant to note that while the fact of the bid submissions reflects a difference of approximately $10,000.00 between Petitioner's bid and that submitted by the next lowest bidder, a computer analysis run on this solicitation reflects a different figure. On the computer analysis, Martin Paving's bid is listed at slightly over $203,000.00 as opposed to the bid face of slightly over $196,000.00. If the $203,000.00 figure is used, the 3.05% goal would not be met. This discrepancy was explained by Mr. Haverty who indicated that the initial figure submitted by the contractor on the bid form is used to assess whether the DBE/WBE goals are met. The issue of good faith effort is raised at a later date. Where, as here, it is determined that the original price is in error and the actual price means that the bidder has failed to meet the goal, if the error is less than 10%, the bid may still be considered responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner's bid on State Project Number 77030-3510, in Seminole County, Florida, be rejected as non-responsive for failure to meet the WBE goal. RECOMMENDED in Tallahassee, Florida this 20th day of June, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 20th day of June, 1985. COPIES FURNISHED: William B. Miller, Esquire Tower Place, Suite 600 3340 Peachtree Road, N.E. Atlanta, GA 30326 Larry D. Scott Staff Attorney Department of Transportation 605 Suwannee Street Tallahassee, FL 32301 Paul A. Pappas Secretary Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32301
