The Issue The issue in this de novo proceeding is whether the intended action of Respondent, University of Central Florida (University), to award a concessions and food services management contract to Ovation Food Services, L.P., d/b/a Spectra Food Services and Hospitality (Spectra), is contrary to the statutes, regulations, or policies governing the University, or contrary to competition, arbitrary, or capricious. The standard of proof for this proceeding is whether the proposed contract award is clearly erroneous, contrary to competition, arbitrary, or capricious. Petitioner, Boston Culinary Group, Inc., d/b/a Centerplate (Centerplate) bears the burden of proof.
Findings Of Fact Participants and Facilities The University is located in Orlando, Florida. In 2017, it was the nation’s second largest university by student enrollment. Florida founded the University in 1963. The University’s various campuses include a number of athletic and performance facilities. For purposes of this matter, they are the CFE Arena, The Venue (a multipurpose facility adjoining the Arena), Brighthouse Networks Stadium, the John Euliano Park Baseball Complex, the UCF Softball Complex, and the UCF Soccer and Track Complex. All of these facilities have food and drink concessions available to people attending events. For some events at some facilities, alcoholic beverages are also available. The stadium seats 45,241 persons. It has 11 concessions stands with 59 points of sale, one catering kitchen, and 15 portable carts. The baseball complex seats 2,000 persons and can accommodate 3,600 people. It has one concessions stand with two points of sale, two carts with two points of sale and one concessions trailer with six points of sale. The softball complex seats 507 people. It has one concessions stand. The soccer and track complex accommodates more than 2,000 people. The University also has a 2007 16-foot Concessions Grill Trailer. The concessionaire may use the trailer and all the concessions stands. In fiscal year 2016, University concessions generated over $2.1 million in sales. Spectra is a wholly owned subsidiary of Comcast Corporation. Spectra provides concessions, venue management, and related hosting and entertainment services in various facilities. There is no question about Spectra’s ability to provide concessions to the University. Centerplate provides food and beverage programs, including concessions, at locations throughout North America and the United Kingdom. Its customers include National Football League stadiums, Super Bowl venues, and the Hard Rock Stadium. There is no question about Centerplate’s ability to provide concessions to the University. Since 2007, Centerplate has held a ten-year contract to provide concessions and alcoholic beverages at the Arena, the Stadium, the Softball fields, and the Baseball fields. The University’s Director of Purchasing and Centerplate’s President executed the contract. It has expired. Aramark and Levy are each providers of concessions services much like those offered by Centerplate and Spectra. The UCF Stadium Corporation is an entity that the ITN identifies as a part owner of the Brighthouse Stadium. The UCF Athletic Association, Inc. (Association) is a direct support organization1/ that the ITN identifies as a part owner of the Brighthouse Stadium and overseer of all athletic events except those conducted at the Arena. However, David Hansen, the University’s Executive Associate Athletic Director and Chief Operating Officer for the Association testified that the University owns the stadium and that the Association only manages the stadium. But he also testified that the University business services unit is the concessions contract manager. The Association has a procurement process. It could have selected the Stadium concessionaire if it chose to do so. The UCF Convocation Corporation (Convocation Corporation) is also a university direct support organization. It owns and oversees operation of the Arena and events there. The Convocation Board of Directors consists mainly of University executives and University Board of Trustees members. The Convocation could have selected the Arena concessionaire if it chose to. Development of the ITN In January 2016, the University, the Athletic Association, and the Convocation Corporation began preparing for the end of the Centerplate contract and the letting of a new concessions contract. Curt Sawyer began the planning process for determining who would provide concessions services after Centerplates’ contract ended. Mr. Sawyer is the Associate Vice President for University Services. Someone, most likely Mr. Sawyer, determined that the University would use an ITN process. The Board of Governors and University rules do not define an ITN. The University’s rule for procurement services names three competitive procurement processes: Invitation to Bid, Request for Proposal, or Invitation to Negotiate. University of Central Florida (UCF) Rule 7-130(2)(a) says that all three shall state the criteria to be used for evaluating proposals. The rule prohibits using criteria not stated in the Invitation to Bid, Request for Proposal, or Invitation to Negotiate. Other parts of rule 7-130 impose notice and advertisement requirements applicable to all three processes. The rule does not expound upon the nature an ITN or how it differs from the other procurement processes. BOG Regulation 18.002, titled “Notice and Protest Procedures for Protests Related to a University’s Contract Procurement Process,” mentions ITN once. It states, In a protest to an invitation to bid or request for proposals procurement, no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered. In a protest to an invitation to negotiate procurement, no submissions made after the university announces its intent to award a contact, reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered. BOG Regulation 18.002(19). This regulation also does not explain what an ITN is. The ITN’s definitions section, 2.17, does define ITN. It states: Invitation to Negotiate- A written solicitation, for goods or services, where factors other than price are to be considered in the award determination. These factors may include such items as Respondent's experience, project plan, design features of the product(s) offered, etc. ITN is used when the specifications cannot be identified; the end result is explained and we want qualified companies to offer their solutions for consideration. January 28, 2016, Mr. Sawyer e-mailed Tracy Slavik to “schedule a contracts’ planning meeting that includes the six men above [copied on the e-mail]. The primary contract to discuss is concessions, although I’d like to also briefly touch on pouring rights as well.” This meeting was to begin planning and drafting the ITN. It was the start of drafting a document to explain the result the University wanted and to develop requirements and statements of work for the ITN. The six men referred to are Gregory Robinson, Kevin Sowers, Michael Shumack, Brad Stricklin, David Hansen, and Brian Hixenbaugh. Mr. Robinson is the University Director of Procurement Services. Mr. Sowers is University Director of Business Services and under Mr. Sawyer on the University organizational chart. Mr. Shumack is with University Business Services. Mr. Hansen is Executive Associate Athletic Director for the University and Chief Operating Officer of the Association. Brian Hixenbaugh has been Spectra’s General Manager for the venue operations services Spectra provided for the Arena the past six years. Mr. Hixenbaugh appears on the University organization chart under Mr. Sawyer, although a dotted line borders the box containing his name. He attended Mr. Sawyer’s direct report meetings. Mr. Hixenbaugh’s email address is a University email address, Brian.Hixenbaugh@ucf.edu. Mr. Hixenbaugh has worked for Spectra since 2006. Mr. Sawyer met with Mr. Robinson, Mr. Sowers, Mr. Shumack, Mr. Hansen, Mr. Stricklin, and Mr. Hixenbaugh to discuss concessions contract planning on February 19, 2016. The fact that Mr. Hixenbaugh was directed to attend the meeting and the absence of evidence that he did not attend support an inference that he attended. After the meeting, on the same day, Mr. Sawyer emailed Ms. Slavik asking her to schedule a follow-up meeting 60 days out, around April 15, 2017. The email identified “Contract planning discussion” as its subject and listed “Takeaways and follow-ups: Concessions agreement” to include in the meeting notes. Mr. Sawyer copied Mr. Sowers, Mr. Shumack, Mr. Robinson, Mr. Stricklin, Mr. Hansen, and Mr. Hixenbaugh. This follow up email to the individuals invited to the February meeting, and its timing, are further evidence reasonably supporting an inference that the people invited to the meeting attended it, including Mr. Hixenbaugh. There is no evidence indicating that Mr. Hixenbaugh did not attend the meeting. The email copied Myrnellie Nido. Ms. Nido is the University’s Associate Director of Procurement Services. The email also copied the email address scarr@athletics.ucf.edu. This is the email address of Scott Carr. Mr. Sawyer’s “takeaways and follow-ups” were: Benchmark other schools –- DH Determination of who owns stadium stands' equipment -- DH, Kevin; Confirm separate contracts Timing of non-renewal letter (after football, during basketball?) ITN Although separate ITN's, crafted simultaneously Fan engagement and experience emphasized: tremendous customer service Brand coordination between multiple facilities, pricing, coordination between UCFCC and AA, MOU, ITN crafting teams ITN releases and timeline Other These items are all substantive considerations for an ITN to provide concessions services. Most are addressed in the ITN or the review process in one way or another. Mr. Sawyer sent another email with the subject “Contract Planning Discussion” on April 26, 2016, asking Ms. Slavik to “schedule a follow-up discussion.” Mr. Sawyer sent this email to the people, including Mr. Hixenbaugh, copied with his January 28 and February 19, 2016, emails. The wording of the email and the fact that the email is dated about 60 days after the February 19, 2016, email requesting a meeting is competent, persuasive evidence that the requested meeting occurred in April and that the people asked to participate did. It is also reasonable to infer that people asked to participate in a meeting did so, in the absence of any evidence to the contrary. There is no evidence indicating that Mr. Hixenbaugh did not attend the meeting. The April 26, 2016, email listed the following substantive subjects for the meeting, all of which figured in the ITN or its evaluation process: Stadium power needs for stands How many themed stands consultant feedback for stadium and arena pricing discussion capital needs discussion RFP timeline RFP structure Other The email asked Ms. Slavik to schedule the meeting about 45 days out, or around June 10, 2016. Mr. Sawyer copied Mr. Sowers, Mr. Shumack, Mr. Robinson, Ms. Nido, Mr. Hixenbaugh, Mr. Hansen, Mr. Stricklin, and Scott Carr. On April 27, 2016, Ms. Slavik sent the other recipients an email proposing meeting dates and times between June 6 and June 10, 2016. On June 9, 2016, Mr. Robinson sent Mr. Hixenbaugh an email, copied to Ms. Nido and Mr. Sawyer, advising of concerns raised by Spectra’s interest in seeking the concessions contract. The email states: Hi Brian: I am not sure what is the proper name: Spectra, Spectra by Comcast, or Comcast Spectacor (website not clear) but I just learned that your company is interested in submitting a proposal for the upcoming concessions contract. If true, unfortunately, we won't be able to take advantage of you and your affiliates' expertise in discussing the pending ITN because having the company involved in any way, by Fla., Statute would eliminate Spectra from being eligible to submit a proposal. We thought you would like to know that, and I can explain further if you want to call. Talk soon. Greg” Mr. Robinson’s concern was well founded. The University, in its rules, takes a strong stand against potential vendors being involved in preparing an ITN or other document soliciting bids or proposals. Mr. Hixenbaugh’s involvement in the ITN development process stimulated more emails. The emails make it clear that there were also conversations about the subject that are not part of the record. At 9:09 a.m., on July 25, 2017, Mr. Shumack emailed Mr. Robinson and Ms. Nido, with a copy to Mr. Sowers, reporting that he and Mr. Sowers had discussed the next step in the ITN process. The email advised that the next step was for a consultant the University engaged to assist with the ITN, Chris Bigelow, to come to the University and begin discussions with “Arena and Stadium stakeholders to determine their goals, objectives and expectations-regarding pricing, commissions, contract structure, fan-experience, etc.” At this point, having engaged a consultant and conducted at least two meetings about the concessions contract, the University had fully embarked on the ITN development, with Mr. Hixenbaugh’s assistance and participation. Mr. Shumack’s July 25 email stated that Mr. Sowers had raised a concern that Mr. Hixenbaugh’s company Spectra planned to pursue the concessions contract. The text of the email merits reproduction here because it conveys the University’s knowledge of the issue and desire to nonetheless continue Mr. Hixenbaugh’s participation in the ITN preparation. Mr. Shumack wrote: The concern Kevin [Sowers] has raised is the person/company (Brian Hixenbaugh with Global Spectrum) that manages the CFE Are[n]a is also planning to bid on the new Concessions contract. So if we include Brian in the discussions it may appear that Global Spectrum (now called Spectra) had some influence in the construction of the ITN/contract (which would be true). However, we would like to have Brian's feedback and involvement in the new ITN/contract since he has been involved with managing the Arena for a while and would most likely have useful information/feedback on how to improve the future contract. What is your advice on this — include Brian in the discussions or do not include? Mr. Robinson replied at 10:56 a.m., on July 2, 2016 that Mr. Hixenbaugh could not participate in “data gathering or discussions. The email continues, “He [Mr. Hixenbaugh] acknowledged understanding via phone a few days later.” The email refers to an attachment that is not part of the record. Mr. Shumack replied: “Thanks Greg. That’s what Kevin and I thought. I didn’t know Brian asked you this question too.” Further emails plainly about the same subject, despite cryptic wording, followed. For some reason the University was working to circumvent its own rules 7.130(10) and 7.130(6)(c). On July 27, 2016, at 8:36 a.m., Mr. Sowers emailed Mr. Sawyer with a copy to Mr. Shumack saying: “Mike [Schumack] and I want to meet with Greg [Robinson] and Nellie [Nido] on how best to communicate or what limits we may have in relations to the concessions contract. Do you want to be a part of that discussion?” Mr. Sawyer wasted no time. His 9:55 a.m. reply to Mr. Sowers stated: “Kevin, I’ve got my one-on-one with Greg [Robinson] this afternoon, why don’t I discuss this with him a bit at that time and lay the groundwork for you and Mike [Shumack] to have a follow-up discussion with him to nail down the specifics.” Mr. Sowers forwarded the email to Mr. Shumack. The next morning Mr. Sawyer emailed Mr. Sowers with a copy to Mr. Robinson reporting the result of his conversation. His email stated: Kevin: Greg and I had a good discussion referencing Concessions' yesterday. We think there is a way forward that would entail all relevant parties in the room for a general discussion (AA, Spectra, B.S., Purchasing, Consultant). In preparation for that discussion, however, we will need to establish the objectives of the discussion and then stick to those objectives. This will be the last discussion that Spectra will be involved with: afterwards the strategic tone of the conversations will be a bit more proprietary in nature. It would probably be a good idea for you to have a short conversation with Greg yourself; afterward let's establish the objectives, make sure Greg is supportive of the structure, then let's move forward in setting up the discussion. Once we get into the new semester and football season schedules will get much more convoluted. Nothing in the record explains why Spectra was a relevant party because it manages the venue but Centerplate, which provides concessions services at all venues, was not a relevant party. Mr. Shumack scheduled and held the next concessions contract meeting on August 29, 2016, from 1:30 p.m. to 3:30 p.m. The email scheduling the meeting at the Business Services Conference Room identified Mr. Sawyer, Mr. Sowers, Mr. Hansen, Mr. Carr, Mr. Robinson, Ms. Nido, Mr. Bigelow, and Mr. Hixenbaugh as participants. Mr. Bigelow, the consultant, prepared a comprehensive five-page agenda for the meeting. Agenda items included the “Mission of Food and Beverage,” current and future customer experience, all-inclusive food and beverage ticket sales with all-inclusive pricing, local brands as subcontractors, catering kitchen, sponsorship versus popular foods, staffing, training, the number of points of sale, point of sale systems, digital signage, planned Stadium and Arena renovations, insurance, minimum commissions, reserve accounts and much more. The agenda also contained a two-page chart of action items with target dates for completion. On August 30, 2016, Mr. Shumack emailed Mr. Sowers a detailed three-page summary of the August 29, 2016, meeting that Mr. Hixenbaugh attended. It identified a wide ranging number of issues covered and conclusions reached. They include, but are not limited to, a preference for a “management fee contract,” breaking the services sought into a base contract with two optional, additional contracts, the term of the contract, the amount of capital investment wanted from the vendor, the contract management structure, upgrades to power sources, upgrades to communications, upgrades to point of service terminals, and additional food stand locations. These agenda items and more would resurface in the ITN and would be discussed with the Final Decision Maker in meetings of the evaluators considering the responses to the ITN and serving as a negotiating team. Mr. Shumack forwarded the email to Mr. Robinson later that day. A November 2016 series of emails also supports finding that Mr. Hixenbaugh attended the meeting. The series starts with a November 2016 email from Mr. Sawyer to University counsel, Jordan Clark, ostensibly asking if contracting with two subsidiaries of Spectra, one managing the Arena and one providing concessions, created any issues. Mr. Clark replied to clarify the question as asking if the question was, is it “legal (in Florida) for an affiliated/related company of Spectra to be awarded the concessions contract?” Mr. Sawyer replied, “I don’t think I have much doubt that it would be legal, I’m just trying to figure out if there’s a perception or optics or ‘other’ type of lens for this particular structure that I should be careful of before we go down the road of issuing an RFP.” Mr. Sawyer did not disclose Mr. Hixenbaugh’s involvement in creating the ITN or that his involvement was the real subject of concern.2/ Mr. Clark sent an email setting forth the limited facts provided him and identifying possible risks and liabilities. He concluded, “Big picture, if the selection is done by the book, then there is not much that is out of the ordinary for this structure.” Mr. Sawyer forwarded Mr. Clark’s email to Mr. Robinson. Mr. Robinson emailed back asking if Mr. Sawyer thought Mr. Jordan’s opinion was “enough.” Mr. Robinson’s response included this understatement, Jordan states everything will be fine if we have a by-the-books selection process, but the perfect process may have already been somewhat tainted because Spectra was at the table during some of the strategy meetings. His opinion has me more concerned than assured and I feel we are on a thin limb without clear cut legal support. Mr. Robinson suggests reviewing the issue with a “high placed” individual in “Audit” with a lawyer and Mr. Sowers present. The record does not reveal how all that went. Why including Mr. Hixenbaugh in the ITN development was so compelling is a mystery. The persistent push to keep Mr. Hixenbaugh involved contrasts markedly with the absence of any sign of efforts to involve a Centerplate representative. Using the stated rationale for Mr. Hixenbaugh’s involvement, Centerplate’s involvement would have been very helpful since it had ten years of experience providing concessions at the facilities. What is not a mystery is that Mr. Sawyer, Mr. Sowers, and Mr. Shumack demonstrated an affinity for Mr. Hixenbaugh and his participation in the ITN process that could only have favored his employer, Spectra. Two reasonable inferences follow from the facts proven by a preponderance of the evidence. One is that several people involved in development of the ITN favored or depended upon Mr. Hixenbaugh. The other is that Mr. Hixenbaugh participated substantively in preparing the ITN and that the University knew this was a problem. Participating in the ITN development would provide a vendor the competitive advantages of having a hand in shaping the ITN, a head start on preparing a proposal, and a fuller understanding of the University’s desires and priorities. Mr. Hixenbaugh participated in the meetings and gained a competitive advantage for Spectra. To the extent that a participant in the ITN development meetings served as an ITN evaluator, attending the development meetings would give a vendor with a representative involved in the development meetings significant competitive advantages. Those advantages include insight into how the evaluators viewed the various items discussed and an opportunity to establish a trusting relationship with the future evaluators in a collegial activity with a shared objective. Mr. Sowers, Mr. Shumack, Mr. Hansen, and Mr. Carr served on the ITN drafting committee, working with and relying on Mr. Hixenbaugh. They were four of the six evaluation committee members (67 percent) evaluating a proposal by Mr. Hixenbaugh’s company in which Mr. Hixenbaugh figured prominently. The proposed timeline from Ms. Nido contemplated distributing the ITN November 1, 2016, and posting the intent to award on March 3 or 6, 2017. Instead, the University posted the ITN on February 28, 2017, and posted the intent to award on July 20, 2017. The record is silent about further ITN development activities between August 29, 2016, and February 28, 2017, when the University issued the ITN. The ITN crafting meetings were not publicly noticed or open to the public. Terms of the ITN The ITN begins with a statement of the University’s goal for the concessions contracts, an explanation of the “base contract” plus two optional contracts structure, and an exposition about the facilities and their affiliated entities. The ITN identifies the University’s goal as creating “an innovative, state-of-the-art concessions program.” The University wanted the program to focus on several facets including customer service, quality, affordability, increased market share, creative concepts that include local and national brands, facility investment, and “a Commission structure commensurate to the University’s stature.” The ITN sought proposals for a base contract to provide concession services to general admission areas. The University intended to award a single base concession contract for all of the identified facilities. The ITN also created two optional contracts that vendors could seek. One was for catering/premium services at the Arena. The other was for catering/premium services at the Stadium. The ITN makes clear that the optional contracts may be awarded separately, in conjunction with the base contract, or not at all. The ITN described the University’s relationships with other entities like this: Note that the Stadium and Arena facilities are owned and operated by two different organizations within the University. The UCF Stadium Corporation and the Athletics Association (a.k.a. Stadium) oversees all of the athletic events except for those events at the Arena which are overseen by the UCF Convocation Corporation (a.k.a. Arena). Concessionaire will be required to track and report sales data and commissions separately for each organization. The University intends that the Concessionaire operate in a manner that recognizes and maintains the distinction between these two University organizations. The ITN provided general information about the University, its services, enrollment, social clubs, service organizations, the student body, and its football team. The ITN stated that the University intended to award the contract around August 1, 2017. It established May 3, 2017, as the date for submitting and opening proposals. The ITN required submission of all communications or inquiries during the ITN process to Ms. Nido. The ITN set up a pre-proposal conference for interested parties that included visits to all of the concessions locations. The ITN created weighted criteria for evaluation of the base contract award. Appendix I, the evaluation scoring sheet reproduced below, listed the criteria and maximum points that could be awarded for each. The ITN goes on to elaborate about each of the criteria. This is the scoring sheet. The ITN established procedures for the ITN process from the publication date until the University took final agency action. They included information about the posting procedure, statements about public records obligations, statements emphasizing that the University was not bound to accept any offer, a general description of the evaluation committee functions, licensing requirements, and parking registration. ITN Section 2.13 prohibited any responding vendor from discussing its offer or communicating with “any UCF employees, agents, representatives, Evaluation Committee members or representatives of UCF except as expressly requested by UCF in writing.” It warned that violation of the communication restriction might result in rejection of the vendor’s offer. Section 2.17 defined words and phrases used in the ITN. They include the ITN definition above, “Sole Point of Contact,” equipment, costs, facilities, branded products, university provided equipment, and “Smallwares.” The ITN defines “sole point of contact” thus: “The Procurement Services department Representative or designee to who Respondents shall address any questions regarding the solicitation or award process.” For this project, Ms. Nido was the sole point of contact. The ITN defined “smallwares” as “the servicewares, utensils, crockery, glassware, dishware and cutlery used in the Concessionaire operation.” Section 2.21 set the contract term at ten years, beginning around August 1, 2017. Section 4 of the ITN stated the program requirements. Section 4.1a sets the concessionaire’s duties and responsibilities as operating the program on its own credit, providing all needed merchandise and equipment at its own expense, engaging necessary labor, obtaining needed supplies, ensuring proper sanitation, and obtaining needed services. The products and services section (4.2) required, among other things, use of local and branded products, working with local not-for-profit organizations, surveys and reporting of pricing at comparable venues, obtaining needed permits and licenses, marketing, employee training, and quality control. The ITN stated that the concessionaire was required to work directly with the Athletics Association and the Convocation Corporation. It also outlined an allocation of responsibilities between the University and the concessionaire for a range of things, including utilities, equipment, premises maintenance, trash removal, and equipment maintenance. The ITN required would-be concessionaires to indicate how they intended to develop and promote their marketing plan; indicate strategies to highlight new products; indicate customer development and retention plans; propose a quantitative mechanism to evaluate the level of services, menu and overall quality; and provide an organization chart with staffing levels. Further, the ITN required responding vendors to, at a minimum, submit a commissions structure proposal; a financial investment proposal; a technology investment proposal; a branded and other subcontracted products proposal; an organization and staffing plan; a description of available training programs; a proposed impartial quantitative mechanism to evaluate services, menu, and quality; proposed menus; a description of a detailed transition plan; financial projections; a company history and statement of qualifications; samples of event information reports; and a description of proposed concessionaire area design concepts. The ITN included a number of attachments. They included the scoring chart reproduced previously, a financial offer form seeking commissions for each year of operation, a form for listing intended branded products, a form for describing and valuing facility investment, a list of university-supplied equipment, the current Centerplate menu and pricing, and diagrams of the facilities. ITN Evaluation Process Sections 2.1 through 2.9 of the ITN created a process for evaluating and selecting a proposal. As noted earlier, the ITN identified Ms. Nido as the sole point of contact for vendors. It allowed for vendor questions and disagreements with some of the ITN requirements and set forth a timeline. The ITN set up a pre-proposal conference for interested parties that included visits to all of the concessions locations. The ITN set the date and time for opening proposals as Wednesday, May 3, 2017, at 2:00 p.m. The ITN made clear that a person chosen by the University would be the Final Decision Maker with sole authority to determine what was in the best interest of the university and then “make the final decision . . . .” The Decision Maker had the authority to assign individuals to provide advice and assistance. The ITN required the Decision Maker to establish an evaluation committee and required the committee to review and rank all responsive offers. Committee members were required to evaluate the proposals using the weighted criteria in the table reproduced in paragraph 77 above. Once responses were opened, evaluators were not permitted to meet as a group or consult with others about their evaluation. They were to function independently during the evaluation. Once their initial evaluations had been concluded and reviewed by the Decision Maker, he could convene the committee to discuss their evaluations. The ITN did not bind the Decision Maker to follow the committee’s evaluations. The ITN broadly empowered the Decision Maker. His authority included the right to negotiate with vendors “whose proposals(s) may represent the best interest of the university.” Centerplate’s assertion that the University could not negotiate until after it had concluded which proposal was in the best interest of the University is not correct. The Decision Maker could convene a negotiating team made up of the evaluators or others. He also could, as he did, seek the advice of others such as Mr. Bigelow. Final authority to select the successful vendor rested with the Decision Maker. Evaluation and Decision Making The University issued the ITN on February 28, 2017. Mr. Sawyer designated Rick Falco, the director of the University's Student Union, as the Decision Maker. Centerplate and Spectra representatives attended a pre-proposal meeting at UCF on March 14, 2017. Centerplate, Aramark, Spectra, and Levy all timely responded to the ITN with proposals to provide base concessions for all of the University facilities, catering/premium services at the Arena, and catering/premium services at the Stadium. The proposals of Aramark and Levy did not provide for separating the base and premium proposals. Mr. Sowers, Mr. Shumack, Michelle Foote, Mr. Hansen, Ronnie Lamkin, and Mr. Carr formed the proposal evaluation committee. All but Ms. Foote and Mr. Lamkin had served on the drafting committee with Mr. Hixenbaugh. On May 8, 2017, Ms. Nido conducted an orientation meeting for the evaluators, followed by a confirming email, providing guidance on how to perform their task. The evaluators completed their ITN scoring sheets and submitted them to Ms. Nido. In turn, she provided them to Mr. Falco. The evaluators gave Spectra an aggregate score of 1,043. They gave Centerplate an aggregate score of 857. According to Mr. Hansen, the two proposals were not that far apart. Mr. Falco decided to meet with the evaluation committee, morphing it into an evaluation/negotiation committee. The consultant, Mr. Bigelow, prepared an “evaluation Matrix of the Proposals” and provided it to Mr. Falco and Ms. Nido on May 17, 2017. Ms. Nido or Mr. Falco provided it to the evaluation/negotiation committee members on May 26, 2017, after the committee members completed and submitted their scoring sheets. Consequently, it could not have affected their scoring. However, Mr. Falco, who was the Decision Maker, considered the matrix when deciding which vendor to negotiate with. Mr. Bigelow’s matrix included an evaluation of the net present value of the proposals that he described as “Shows the Net Present Value of each offer that creates an ‘apples to apples’ comparison leveling the investment and commissions.” The ITN required all respondents to present their financial offers in a chart identified as Attachment A-1 to the ITN seeking commission revenue projections for each year of the contract and proposed annual investments. Spectra completed the chart. Centerplate chose to present a tiered commission proposal that did not fit into the chart categories. This made the concept of an “apples to apples” comparison sensible. However, Mr. Bigelow’s report does not explain how he calculated his comparison. There is also no testimony explaining it. Mr. Bigelow’s chart for the revenue projections does not present an “apples to apples” comparison. It presents “adjusted” revenue columns for years one through ten. For reasons unknown, the chart for Spectra, but not for Centerplate, includes a column titled “Original Year.” This resulted in Mr. Bigelow, and therefore Mr. Falco, using 11 years of revenue for Spectra and only ten years of revenue for Centerplate. The total gross receipts amount in the Spectra “Original Year” column is $2,486,453. This amount is more than the $2,446,453 difference between the total gross receipts amount of $31,613,424 for Spectra and $29,166,971 for Centerplate. Subsequent use of the values that included the “original year” amount flawed the report’s evaluation of the revenue proposals to the benefit of Spectra. Mr. Falco and the evaluation/negotiation team were not aware of this error. Mr. Bigelow’s report contains another revenue calculation error. In calculating revenue from subcontractor sales, he failed to account for the reduction in commissions paid to the University caused by payment of a commission to subcontractors. This too made the revenue figures for the Spectra proposal considered by Mr. Falco artificially high. The unrebutted testimony of Salvatore Ferrulo on the subject of the financial projection errors in Mr. Bigelow’s report was persuasive, credible, and supported by a review of the documents. Mr. Ferrulo’s work experience qualified him to analyze the report. The University did not offer rebuttal evidence, such as the testimony of Mr. Bigelow, to explain his report. The University’s response to the errors in the revenue analysis is to say they do not matter because the evaluators did not see them until after they scored the proposals. The response is not persuasive. The evaluators saw Mr. Bigelow’s report before their post-scoring negotiating team discussions with Mr. Falco. More importantly, Mr. Falco saw and considered the flawed report. This means that the decision about which vendor to negotiate with was informed by an error in Spectra’s favor of nearly 2.5 million dollars. Mr. Falco and the evaluation/negotiation committee met on May 31, 2017. The group agreed that the University would only engage a concessionaire for the base concessions contract. This decision eliminated Aramark and Levy from consideration because their proposals indicated they would not accept an award of only a base contract. This left Spectra and Centerplate competing for the base contract. At the May 31, 2017 meeting, Mr. Falco, after discussions with the evaluation/negotiation committee, concluded that he had questions for Spectra and wanted to enter negotiations with Spectra. At this meeting, the participants first discussed their desire to avoid extending the Centerplate contract and allow Spectra to begin services before the contract was approved and final. At the May 31, 2017, meeting, Mr. Falco decided that for strategic purposes he did not want to publicly eliminate Centerplate from the ITN process. However, Mr. Falco did not choose to negotiate with Centerplate. The group discussed time pressures created by the delays in the ITN process and July schedule for the Board of Trustees and its committees. Mr. Shumack pointed out that the University could extend the existing contract if they ran out of time. A participant identified as “Person X” in the transcript opposed the idea saying, “I’m not interested in that.” Most likely Mr. Sowers is Person X. He is the only participant who is not otherwise identified as speaking during the meeting. On June 1, 2017, University Procurement Services sent Spectra a list of questions and topics about its proposal and invited Spectra to negotiate. Also on June 1, 2017, the University notified Spectra that it had decided to award only a base concessions contract. The University did not tell Centerplate about this decision until July 5, 2017. On June 16, 2017, University Procurement Services sent Spectra another email inviting it to a June 23 in-person meeting, providing additional information about the meeting, and submitting questions. They included a request to lower some menu prices, a request for resumes of other general manager candidates, an explanation of how Spectra intended to share staff between concessions and venue management, and an inquiry about the branded foods it intended to offer. On June 21, 2017, Spectra representatives who came for the meeting asked University Athletics and Arena staff for walk- through tours of the facilities. The staff obliged. Mr. Hansen knew of the planned tour and saw no issue with it. He provided the keys needed to conduct the walk-through. There is no record of the tour or testimony about what was said. Inferring that the tour participants did not conduct the entire tour in complete silence with no communications between the University staff and the Spectra representatives is reasonable. The tour violated the prohibition of ITN Section 2.13. It should not have happened. The tour concerned Ms. Nido and Mr. Robinson because it violated ITN communication restrictions. In a June 21, 2017, email Mr. Hansen asked Mr. Falco to see if Spectra was “willing to work with us at-risk before their contract is approved by the BOT in late July. I don’t think either side wants to wait until late July to begin planning." Mr. Falco, Mr. Bigelow, Ms. Nido, Procurement Services staff, and the evaluation/negotiation committee met with Spectra representatives on June 23, 2017, for about an hour and a half. Mr. Hixenbaugh played a prominent role in the discussions. He said that he would be the main contact for the contract. Mr. Hixenbaugh advocated the Spectra proposal to a group that included four of the people he worked with during development of the ITN. Committee members voiced their concerns about the quick transition selecting Spectra would require. In the meeting, Spectra emphasized the synergies, including shared staff and expertise, with its Arena management that its proposal offered. During the meeting, the University told Spectra it was going to request best and final offers. At some point, after the meeting with Spectra, Ms. Nido, Mr. Shumack, Mr. Hansen, Mr. Carr, and Mr. Lamkin met to the discuss the contract. The meeting transcript does not provide a date. Their wide ranging discussions included concerns about the time pressure, questions about the accuracy of the Spectra financial projections involving branded items, Spectra’s ability to transition into the contract in August, and concerns about Spectra’s ability to have its point of sale systems operating. Mr. Shumack raised the option of extending the existing contract again. Again, Person X was adamantly opposed. In this meeting, Person X was probably Mr. Carr, since the other participants are identified by name when they speak. In this meeting, Mr. Hansen reveals that he knew of the unauthorized walk-through of the facilities an hour before it happened and provided someone named Julian the keys to conduct the walk-through. He did nothing to stop it. Mr. Falco did nothing about it. None of the negotiation sessions were publicly noticed or open to the public. Neither was the facility walk-through. On July 5, 2017, University Procurement Services sent Centerplate a series of questions about its proposal, for appearances’ sake. Centerplate responded on July 7, 2017. On July 7, 2017, the University's Procurement Services solicited a best and final offer from Spectra and Centerplate. Both responded with proposals that increased the contract’s financial benefit to the University. Mr. Falco evaluated the best and final offers from Spectra and Centerplate without consulting further with the evaluation committee. Mr. Falco decided that the University should award the Contract to Spectra. On July 20, 2017, Mr. Falco presented his decision to the University's Board of Trustees' Finance Committee and to the full Board. Also on July 20, 2017, University Procurement Services posted its Intent to Award, indicating that Spectra had made the successful proposal. On July 21, 2017, Centerplate filed and served the University with its notice of intent to protest. On July 31, 2017, Centerplate filed and served its formal protest. After the Protest Sometime after July 31, 2017, Convocation Corporation and the Association entered into short-term contracts with Spectra. The contracts provide for goods and services very similar to those proposed in Spectra’s response to the ITN. This fact is further evidence of the bias toward Spectra in the process. The University maintains that the short-term contracts are of no moment because it is not a party to them. The murky relationships among the University, the Association, and the Convocation Corporation make the contracts relevant to the issue of fairness in the process. Throughout the ITN development and evaluation process, the three entities functioned as one and as if they had authority to bind each other in contracts. The indicia of the gestalt of the three organizations include the uncertainty about whether the Association or the University owns the Stadium, this ITN where the University is selecting and contracting with the concessionaire for facilities the other two may own and do operate, and the fact that the University signed the last contract, although the Association and Stadium Corporation owned the Stadium at the time. The ITN’s statement that the University must maintain fire and extended coverage on the facilities, which it may or may not own, is further indicia of the organizations viewing themselves as one and acting as one. The fact that the Association and the Convocation Corporation have a procurement process and could have contracted for concessions for the Stadium and the other University facilities they own or manage without the University is further evidence of blurred lines between the organizations. The University had three, more straightforward, options for securing concession services while this matter pends. First, UCF Rule 7.130(3)(h)1. gives the University authority to make emergency procurements. Second, UCF rule 7.130(6)(c) allows the University to extend an existing contract for as long as 12 months while a bid dispute pends. Third, BOG Regulation 18.002(7), which requires that the University stop the contract award process when it receives a formal protest until the protest is resolved, permits the University to continue the award process if the President states in writing that continuing the award process without delay is necessary to avoid an immediate and serious danger to the public health, safety or welfare. The fact that the University eschewed these options for an artifice buttresses the determination that the process was biased in Spectra’s favor and contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the University of Central Florida, enter a final order declaring the Intent to Award invalid and rejecting all proposals to Invitation to Negotiate Number ITN1617NCSA. DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2017
The Issue Whether Respondent’s termination for alleged misconduct should be upheld based on the reasons stated in the termination letter dated July 25, 2005.
Findings Of Fact Respondent, Gregory V. Black was employed as an assistant football coach at FAMU from July 1, 1998 to July 25, 2005. Head Football Coach William (Billie) Joe was Mr. Black’s supervisor. During his employment, Coach Black received excellent to superior evaluation ratings. Coach Black was employed under an annual contract with FAMU. Until his termination, Coach Black was paid his regular salary and received the normal and customary retirement benefits and perks for his position. The last fully executed contract with the University ran from January 1, 2004, to December 31, 2004. However, a printout generated from the University’s personnel department indicates a beginning date of August 8, 2004, and an ending date of August 7, 2005. Additionally, there was a partially executed contract signed by the University’s interim president, Castell Bryant. The term of the partially executed contract ran from January 1, 2005 to June 30, 2005. The contract incorporated NCAA regulation 11.2 regarding contractual agreements between coaches and an NCAA member institution. The incorporated provisions state, in relevant part: Stipulation That NCAA Enforcement Provisions Apply. Contractual agreements . . . shall include the stipulation that a coach who is found in violation of NCAA regulations shall be subject to disciplinary or corrective action as set forth in the provisions of the NCAA enforcement procedures. Termination of Employment. Contractual agreements . . . shall include the stipulation that the coach may be suspended for a period of time, without pay, or that the coach’s employment may be terminated if the coach is found to be involved in deliberate and serious violations of the NCAA regulations. FAMU is a member of the NCAA. Member institutions of the NCAA are obligated to apply and enforce NCAA regulations and are responsible for operating their intercollegiate athletics program in compliance with the regulations of the NCAA. As part of that responsibility, FAMU has adopted the NCAA By-Laws as part of its rules and regulations governing the University. Member institutions also are responsible for governing staff members involved with athletics. Penalties for violations of NCAA regulations generally apply to member institutions and their programs. Occasionally penalties can apply to individual staff members who are directly involved in violations of NCAA regulations. In cases where an individual is the subject of an NCAA investigation, the NCAA issues a Notice of Allegations. In this case no Notice of Allegations was issued to Coach Black or any other member of the football coaching staff. In fact, the NCAA did not conclude or find that Coach Black committed any NCAA rule violation and the NCAA report only mentions his name in reference to being interviewed. There is no mention of Coach Black in reference to being involved in or knowing about any of the NCAA violations referenced in the report. Indeed Coach Black has never been the subject of an NCAA rule violation. Coach Black was primarily responsible for coaching and developing the offensive line. He ran practices and monitored the progress of his players. Coach Black did not generally monitor his player’s academics, unless the athletic office advised him of a problem. Likewise, Coach Black was not generally responsible for ensuring various student eligibility forms were completed and on file with the University. Nor was he generally responsible for recruitment activities. He was required to have general knowledge of NCAA regulations and responsible for reporting any violations of those regulations that he had knowledge of to the proper authorities at the University. The evidence showed that Coach Black did have such knowledge of the NCAA regulations and that he understood the reporting requirements of those regulations. It was Coach Black’s practice to be present when the offensive line was practicing. Generally, if he was on the field, the offensive line was out there with him. At some point FAMU became aware that their were allegations of NCAA violations at FAMU and that an NCAA investigation might occur. In light of those allegations, FAMU completed a Self-Report concerning violations of NCAA regulations. The Self-Report identified multiple alleged violations, of which the University’s football program allegedly constituted the bulk of the violations. No one who was involved with the Self-Report testified at the hearing. There was no competent evidence introduced at the hearing corroborating the allegations of the report. Uncorroborated hearsay statements made in the report about alleged violations cannot be used to prove that Coach Black violated NCAA regulations or knew about such alleged violations and failed to report those violations. In addition to the Self-Report, the NCAA conducted an investigation and issued a report concerning such alleged violations. The NCAA investigated numerous violations of NCAA regulations, including exceeding the daily practice time limitation, exceeding the weekly practice time limitation and not observing the day-off requirement regarding its football program. No NCAA official or investigator testified at the hearing. No corroborating evidence was offered at the hearing. As with the Self-Report, uncorroborated hearsay statements made in the report about alleged violations cannot be used to prove that Coach Black violated NCAA regulations or knew about such alleged violations and failed to report those violations. As a result of the NCAA conducting an investigation, the University retained a consultant, Mr. Nelson Townsend, to assist in interpreting exactly what the NCAA findings meant to the University. Mr. Townsend generally recommended the University make staff changes in the football program. There was no evidence that Mr. Townsend considered The University’s personnel rules in making his recommendation. On July 25, 2006, FAMU issued a letter of termination to Coach Black terminating his employment “contract” with FAMU. The termination was based on alleged NCAA violations regarding daily and weekly hours of practice, not permitting a day off to the players and failure to report such violations. The letter treated Coach Black as if he had a contract with FAMU and provided him rights under FAMU’s personnel rules regarding just cause and a right to a hearing. The letter, also, clearly had the effect of stigmatizing Coach Black in his profession as an assistant football coach. The allegations and termination were on the news. Indeed, Coach Black had difficulty finding suitable employment equivalent to what he possessed at FAMU after his termination. However, FAMU, in this proceeding, has admitted that Coach Black did not commit any NCAA violations. Indeed, there was no competent evidence that Coach Black was aware of or should have been aware of any alleged violations. Given this lack of evidence FAMU has failed to establish just cause for terminating Coach Black, and he is entitled to be reinstated for the remaining term of his contract, if any. The University’s interim president decided to withhold the employment contracts of all of the assistant football coaches. The evidence showed that there were many times that Coach Black’s employment contracts were executed after the start date of the contract period. However, the employment contract clearly states: . . . Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President or President’s designee, . . . and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority . . . . Irrespective of the language and terms of the contract, FAMU treated this matter as one arising under employment that can only be terminated for just cause. For purposes of this action, FAMU is estopped from claiming that Coach Black was an at-will employee. Additionally, the issue of whether Coach Black had an employment contract with FAMU need not be addressed since Coach Black was not terminated based on the expiration or absence of his contract. It is the reasons regarding NCAA violations stated in the termination letter that are at issue here. As noted, there was an absence of proof to support those allegations. Therefore, Coach Black is entitled to reinstatement and to have his name cleared of the stigma that termination for those allegations have caused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered by FAMU reinstating Respondent and clearing his name from the allegations made in the termination letter. DONE AND ENTERED this 24th of July, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2006. COPIES FURNISHED: H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 Antoneia L. Roe, Esquire Florida A&M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Robert E. Larkin, III Allen, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Castell V. Bryant, Interim President Florida A & M University 400 Lee Hall Tallahassee, Florida 32307-3100
The Issue Whether this cause is barred by a release of all claims.
Findings Of Fact On January 16, 2019, on her last day of employment with Respondent, Petitioner executed a General Release. Petitioner does not dispute that she signed the General Release, which states, in pertinent part: I knowingly and voluntarily release and forever discharge [Respondent] of and from any and all claims, known and unknown, anticipated and unanticipated, asserted and unasserted, which I have or may have against the [Respondent] as of the date of execution of this General Release. These released claims include, but are not limited to, any alleged violation of ... Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; ... [and] the Florida Civil Rights Act[.] * * * By signing below, I am knowingly and freely waiving and releasing all claims I may have against the [Respondent]. I further affirm I have been given a sufficient amount of time to consider whether to sign this General Release. The subject complaint of discrimination was brought by Petitioner, after she signed the General Release, pursuant to the FCRA, which is specifically referenced as a released claim in the General Release. By executing the General Release, Petitioner released Respondent from the claims that were the basis for her complaint of discrimination. Petitioner asserts that the General Release was signed under duress, she did not give up her rights because she had not yet received her final paycheck or belongings, and that there is no proof that she received consideration for signing the general release.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Kathy L. McKethan’s Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Keith L. Hammond, Esquire Law Office of Keith L. Hammond, P.A. Post Office Box 547873 Orlando, Florida 32854 (eServed) Kathy McKethan Post Office Box 953304 Lake Mary, Florida 32795 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 1075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations, thereby permitting the Division of Administrative Hearings to exercise jurisdiction for the conduct of a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
Findings Of Fact On December 13, 1995, and again on January 12, 1996, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on December 2, 1994, charging an unlawful employment practice by Respondent. On October 11, 1995, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice had occurred. Notice of that determination was served on Petitioner at his Quincy, Florida address by regular mail. The "Notice of Determination: No Cause" served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF with 35 days of the date of this NOTICE OF DETER- MINATION: NO CAUSE. The "Notice of Determination: No Cause" also contained the following statement: If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Petitioner received the Notice of Determination. Sometime after receipt of the notice, Petitioner telephoned the FCHR and spoke with a secretary who again explained the necessity of filing a Petition For Relief to Petitioner within the specified time limits. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause. No evidence was presented by Petitioner that he did not receive the mail notice of the FCHR determination in a timely fashion sufficient to permit his timely filing of a Petition For Relief.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 95-6018 and FCHR Case No. 94-E334, for failure to timely file the Petition. DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 18th of March, 1996. COPIES FURNISHED: Lorenzo McGill Route 7, Box 4096 Quincy, Florida 32351 Kimberly L. King, Esquire Messer, Caparello, Madsen, et al. Post Office Box 1876 Tallahassee, Florida 32302-1876 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Ronald M. McElrath, Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
The Issue Whether the petitioner is entitled to an award under section 57.111, Florida Statutes, of attorney’s fees and costs incurred in the appellate matter Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994), and, if so, the amount of such award.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is the state agency responsible for issuing occupational licenses to veterinarians with access to the backside of a racetrack and for regulating such licensees. Sections 550.10(1)(b) and .105(2)(d)2, Florida Statutes. Dr. Witmer has been licensed to practice veterinary medicine in Florida since January 1, 1993, and, as of October 19, 1993, he was authorized to practice veterinary medicine at Florida racetracks by virtue of a pari-mutuel wagering occupational license (“license”) issued by the Department. He has been domiciled in Florida at all times material to this matter. On October 19, 1993, Dr. Witmer was a partner in a professional practice in veterinary medicine with its principal office at 1450 Southwest Third Street, Pompano Park, Broward County, Florida. His professional practice had three full-time employees and a net worth, including both personal and business investments, of less than $2 million. In the Administrative Complaint and Emergency Order of Suspension dated October 19, 1993, the Department took two actions with respect to Dr. Witmer’s license.1 First, in the administrative complaint, it put Dr. Witmer on notice that the Department had initiated a disciplinary action against him, charging him with violations of a statute and a rule governing his license which, if proven, would justify the imposition of penalties, including revocation or suspension of his license. Secondly, in the emergency order of suspension, it summarily suspended Dr. Witmer’s license. Dr. Witmer requested a formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to challenge the truth of the allegations contained in the administrative complaint. The request was forwarded to the Division of Administrative Hearings and assigned DOAH Case Number 93-6638. That action was pending at the time Dr. Witmer filed the application for attorney’s fees and costs at issue in this proceeding. Underlying proceeding On the basis of the allegations contained in the administrative complaint and its determination that Dr. Witmer’s interest in his license was “far outweighed by the immediate danger to the public health and safety and to the integrity of harness racing in the State of Florida,” the Department suspended Dr. Witmer’s pari-mutuel wagering occupational license as of October 19, 1993, ordered him to cease and desist from all activities authorized by the license, and barred him from entering any pari-mutuel establishment as a patron for the duration of the emergency suspension. Dr. Witmer chose to seek immediate judicial review of the emergency order pursuant to sections 120.60(8) and 120.54(9)(a)3, Florida Statutes (1993). It is this appellate proceeding which is the proceeding underlying Dr. Witmer’s application for attorney’s fees and costs at issue herein. State agencies are authorized by section 120.60(8), Florida Statutes (1995) to immediately suspend a license under the following circumstances and subject to the following conditions: If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon. Section 120.54(9)(a), Florida Statutes, provides in pertinent part: If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that: * * * 3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. . . . The agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable. On February 2, 1994, the District Court of Appeal for the Fourth District of Florida issued its opinion in Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Case Number 93-3232, reported at 631 So. 2d 338. The court quashed the Emergency Order of Suspension, concluding that the order was “facially inadequate,” and ruling that “the Department’s findings of immediate danger to the public welfare are not supported by specific facts and reasons as required by 120.54(9)(a)3, Florida Statutes.” Id. at 340, 343. The district court in Witmer observed that its review was limited to a determination of whether the order complied with the requirements of section 120.54(9)(a)3 and based its analysis upon the following rules of law: If the facts alleged in the complaint and [emergency] order are sufficient to demonstrate immediacy, necessity and fairness, no hearing is required prior to the emergency suspension. . . . The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. (Citation omitted.) Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. (Citation omitted.) The order must be “factually explicit and persuasive concerning the existence of a genuine emergency.” (Citation omitted.) Witmer, 631 So. 2d at 341. In reaching its conclusion that the emergency order was facially inadequate, the court in Witmer held that the Department failed to allege facts in the complaint and order to establish the essential elements of the violations upon which the emergency suspension was based. Firstly, the court found that the charge in the emergency order that Dr. Witmer had failed to report gratuities was not supported by any allegations of fact in the complaint and order. Id. at 341. Secondly, the court found that the Department failed to allege that Dr. Witmer’s actions related to horse racing or to race horses, an essential element of a violation of section 550.235(2), Florida Statutes, and of rule 61D-1.002(10), Florida Administrative Code. Id. at 342. Thirdly, the court found that the Department failed to allege that Dr. Witmer reached an agreement with a second person to commit the violation, an essential element of any conspiracy, including one to violate section 550.235(2) and rule 61D-1.002(10). Id. Finally, the court concluded that the public harm alleged by the Department in the order was too attenuated to support the emergency suspension of Dr. Witmer’s license. Id. at 343. The district court issued its mandate to the Department on February 18, 1994, directing it to act in accordance with the opinion quashing the Emergency Order of Suspension. The Department did not seek review of the decision of the district court in the Florida Supreme Court. Consequently, the decision of the district court had the effect of nullifying the emergency suspension of Dr. Witmer’s license. Summary Dr. Witmer was a small business party, as that term is defined for purposes of section 57.111, at the time the Department entered the emergency order.2 The evidence is sufficient to establish that the Department initiated an action against Dr. Witmer when it entered an Emergency Order of Suspension. This order was issued under the authority granted state agencies in section 120.60(8), Florida Statutes. The order had the effect of immediately and summarily suspending Dr. Witmer’s pari-mutuel wagering occupational license. Dr. Witmer had the right to seek immediate judicial review of the emergency order pursuant to section 120.54(9)(a)3. The appellate court quashed the emergency order because it was legally insufficient to support the suspension of Dr. Witmer’s license under the standards of section 120.54(9)(a)3. The Department did not appeal or seek further review of the appellate court’s decision. Dr. Witmer, therefore, prevailed in the administrative proceeding initiated by the Department. The Department presented no evidence to establish that its action in ordering the emergency suspension of Dr. Witmer’s license had a reasonable basis in law and fact or that any special circumstances exist which would make an award of attorney’s fees and costs in this case unjust.3 The monetary value of the attorney’s fees rendered in connection with the appellate proceeding culminating in the decision quashing the Emergency Order of Suspension is $9,715.00, and the costs incurred total $250. These fees and costs are reasonable and were necessary to prosecute the appellate proceeding.4
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases by LEAF and Suzi Ruhl. RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: David A. Ludder, Esquire Legal Environmental Assistance Foundation, Inc. 1115 North Gadsden Street Tallahassee, Florida 32303 Cynthia K. Christen, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Anthony Cleveland, Esquire Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole Post Office Box 6507 Tallahassee, Florida 32314-6507 Virginia B. Wetherall, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue for determination in this proceeding is whether Florida Administrative Code Rules 16B-33.005(1), 16B- 33.005(3)(c), 16B-33.005(3)(g), 16B-33.005(7), 16B-33.007(7), 1/ and certain agency statements interpreting those rules are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes. 2/
Findings Of Fact The Parties Except as provided in this Final Order, the findings in the Recommended Order entered in the action instituted pursuant to Section 120.57(1) are adopted by this reference as though fully stated herein. Petitioner is a "property and/or riparian owner" within the meaning of Section 161.053(5)(a). Petitioner owns a single family residence located on a parcel of land situated on highway A1A in Orchid Island, Indian River County, Florida. The parcel fronts the Atlantic Ocean and extends landward from the mean high water line to highway A1A. Petitioner's home is a major habitable structure within the meaning of Rules 16B-33.002(54)(a) and 16B-33.005(3)(b) and (c). Petitioner's home is a two story residence that includes a garage, swimming pool, and patio. The foundation of the home is a nonconforming foundation within the meaning of Rule 16B- 33.007(4). Petitioner's application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other applicable requirements. Respondent determined that the application was complete on or before August 14, 1990. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws of Florida, Chapter 93-21. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members. Background Petitioner began construction of his home prior to March 4, 1987. When construction commenced, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioner's home. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioner's home. Construction had progressed sufficiently so that Petitioner's home was grandfathered by applicable regulatory restrictions, and construction was subsequently completed. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in front of Petitioner's home. The dune fronting Petitioner's home was severely undercut by wave action from the storm. Petitioner temporarily placed a partial rock revetment on the seaward side of the dune. On July 19, 1989, Petitioner filed an application for a permit to complete the rock revetment and subsequently amended the application to include the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead if Petitioner demonstrated his home is vulnerable to a 10 or 15 year return interval storm event (a "RISE"). The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater force. 6/ On April 17, 1990, Petitioner submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line, and vegetation line, and 23 feet seaward of Petitioner's existing patio. All work on the bulkhead is to take place landward of the steel wall. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval up to 25 years. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioner's property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent recommended approval of Petitioner's application subject to stated conditions. On August 14, 1990, an agenda item recommending approval of Petitioner's application was considered by the Governor and Cabinet. The agenda item represented that Petitioner's home was vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioner's application without explication. 7/ Immediately following the denial of Petitioner's application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioner's, were expressly exempt from the new policy. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). Since Petitioner's application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No applications other than those at issue in this consolidated proceeding were complete on or before August 14, 1990. A Final Order denying Petitioner's application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioner timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1). Nature And Scope Of Rule Challenges Petitioner asserts two types of rule challenges in this proceeding. First, Petitioner challenges the validity of certain rules that have been promulgated in compliance with statutory rulemaking requirements ("written rules"). 8/ Second, Petitioner challenges the validity of agency statements allegedly defined as a rule in Section 120.52(16) but not promulgated in compliance with statutory rulemaking requirements ("unwritten rules"). Petitioner claims that Rules 16B-33.005(1), 16B- 33.005(3)(c) and (g), 16B-33.005(7), and 16B-33.007(7) are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(b)-(e). Petitioner asserts that these written rules: exceed the scope of Respondent's delegated legislative authority, within the meaning of Section 120.52(8)(b); enlarge, modify, or contravene the specific provisions of law implemented, within the meaning of Section 120.52(8)(c); are vague, without adequate standards for agency decisions, and permit the exercise of unbridled discretion, within the meaning of Section 120.52(8)(d); and are arbitrary and capricious, within the meaning of Section 120.52(8)(e). Petitioner asserts that the unwritten rules are an invalid exercise of delegated legislative authority because: Respondent materially failed to comply with statutory rulemaking requirements, within the meaning of Section 120.52(8)(a); and the unwritten rules suffer the same infirmities as those alleged for the written rules. Delegated Authority And Law Implemented Respondent's rulemaking authority is delegated in Section 370.021(1). That section provides that Respondent: . . . shall make, adopt, promulgate, amend, and repeal all rules and regulations necessary or convenient for the carrying out of the duties, obligations, powers, and responsibilities conferred . . . . The specific provisions of law implemented by each of the written rules at issue in this proceeding are found in Sections 161.052 and 161.053. Section 161.052(1) provides in relevant part: No person . . . shall excavate or construct any . . . seawall . . . within 50 feet of the line of mean high water at any riparian coastal location fronting the . . . Atlantic . . . shoreline . . . . Section 161.053(1)(a) declares that the beaches and coastal barrier dunes in Florida: . . . are subject to frequent and severe fluctuations and represent one of the most valuable natural resources of Florida and that it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access . . . . Section 161.053(5) provides in relevant part: . . . a permit to . . . excavate or construct [a seawall] on property seaward of established coastal construction control lines may be granted by . . . [Respondent] as follows: The [Respondent] may authorize an excavation or erection of a structure at any coastal location as described in subsection upon receipt of an application from a property and/or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon [the] beach- dune system, which, in the opinion of [Respondent], clearly justify such a permit.9/ Written Rules The written rules challenged by Petitioner are set forth in relevant part below. Disputed terms in each rule are underlined (hereinafter, "disputed terms"). Rule 16B-33.005(1) provides in relevant part that activities seaward of the CCCL shall be limited and: . . . the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (emphasis supplied) Rule 16B-33.005(3)(c) provides in relevant part: In those cases in which a rigid coastal protection structure is the only feasible means of protecting an existing habitable major structure . . . , then that rigid coastal protection structure shall be located as far landward as possible, consistent with design and construction requirements. (emphasis supplied) Rule 16B-33.005(3)(g) provides in relevant part: . . . Where justified and properly designed and constructed . . . [rigid coastal protection structures] will provide some measure of protection for upland structures . . . . (emphasis supplied) Rule 16B-33.005(7) provides in relevant part that coastal armoring: . . . may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The [Respondent] may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . (emphasis supplied) Rule 16B-33.007(7) provides in relevant part: The necessity for activities seaward of the control line or setback line shall be stated and clearly justified by the applicant in accordance with the requirements of this Chapter . . . . (emphasis supplied) Written Rules: Challenge To Delegated Authority And Law Implemented Petitioner claims, inter alia, that the disputed terms are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(b) and (c). Petitioner asserts that the disputed terms exceed the grant of rulemaking authority and enlarge, modify, or contravene the specific provisions of law implemented. Necessity The legislature finds in Section 161.053(1)(a) that it is in the public interest to preserve and protect the beach-dune system from imprudent construction. In the same section, the legislature finds that any imprudent construction seaward of the CCCL, ". . . can jeopardize the stability of the beach-dune system . . . [and] accelerate erosion . . . . " Legislative findings and determinations are presumed correct. 10/ The legislative findings in the law implemented in Section 161.053(1)(a) are not enlarged, modified, or contravened in Rule 16B-33.005(3). Rule 16B-33.005(3) finds: The construction . . . of . . . flexible coastal . . . protection structures such as beach nourishment, dune construction and stabilization, and sand fencing is encouraged over the construction of rigid coastal . . . protection structures (seawalls, bulkheads, revetments, mounds, groins, etc.). Rigid coastal protection structures do not protect the beach. In most cases, they may be expected to have a long-term adverse effect on the beach in their immediate vicinity. . . . The quoted administrative findings are within the scope of the agency's expertise, are entitled to deference, and were not shown by a preponderance of evidence to be clearly erroneous. 11/ Rigid coastal armoring generally does not protect the beach-dune system and may have a long term adverse effect. Respondent implicitly determined that construction of unnecessary rigid coastal armoring is imprudent construction within the meaning of Section 161.053(1)(a). That determination is a reasonable construction of a statute by the agency statutorily required to administer it. 12/ The requirement in Rules 16B- 33.005(1) and 16B-33.007(7) for applicants to demonstrate the necessity for proposed armoring is a reasonable means of protecting the beach dune system from unnecessary and imprudent construction. The agency's construction is entitled to great weight and was not shown by a preponderance of evidence to be clearly erroneous. 13/ Clearly Justify Respondent is required in Section 161.053(5)(a)3 to consider potential cumulative impacts on the beach-dune system which "clearly justify" a permit. Section 161.053(5)(a) provides that Respondent may issue a coastal armoring permit "upon consideration of facts and circumstances including" (emphasis supplied) cumulative impacts on the beach-dune system which "clearly justify" a permit within the meaning of Section 161.053(5)(a)3. Words of inclusion in Section 161.053(5)(a) do not exclude items not enumerated in Section 161.053(5)(a)(3). 14/ Thus, Respondent may consider other facts and circumstances which "clearly justify" a permit. The cumulative impacts requirement in Section 161.053(5)(a)3 is a legislative requirement imposed for the purpose of protecting the beach-dune system from imprudent construction. The necessity requirement is an administrative requirement imposed for the same purpose. 15/ Respondent correctly assesses its administrative requirement by the same standard legislatively mandated for assessing the cumulative impacts requirement, i.e., the "clearly justify" standard. Feasible Disregarding feasibility for the moment, the requirement that rigid coastal armoring must be the only means of protection protects the beach-dune system from imprudent construction. Imprudent construction can jeopardize dune stability and accelerate erosion. Rigid coastal armoring does not protect the beach-dune system and may be expected to have a long term adverse effect on the beach-dune system. The requirement that an alternative to rigid coastal armoring must be "feasible", arises by reasonable implication and benefits applicants. The feasibility requirement precludes consideration of any alternative that is not "feasible." Similar Structures, Segment Of Shoreline, and Threaten Respondent must consider "similar structures" when assessing cumulative impacts on the beach-dune system pursuant to Section 161.053(5)(a)3. The cumulative impact doctrine generally requires consideration of impacts from: the proposed project; existing projects; projects under construction; projects for which there are pending applications; and projects which may reasonably be expected to be located in that segment of shoreline. 16/ Section 161.053(1)(a) expressly authorizes Respondent to establish a "segment" of the CCCL further landward of the impact zone of a 100-year storm. That segment of the CCCL is established to protect the beach-dune system from imprudent construction seaward of the CCCL. The purpose of defining a "segment of the shoreline" in Rule 16B-33.005(7) is to protect the beach-dune system from cumulative adverse impacts of imprudent construction seaward of the CCCL. The "segment of shoreline" in Rule 16B-33.005(7) does not enlarge, modify, or contravene legislative authority to establish a "segment" of the CCCL in the law implemented. Section 161.053(1)(a) requires Respondent to protect the beach-dune system from imprudent construction that can "jeopardize" its stability. The beach-dune system is jeopardized by imprudent construction if the beach-dune system is exposed to danger. 17/ The beach-dune system is "threatened" by armoring if it is endangered. 18/ Respondent's authority to protect the beach- dune system from cumulative impacts that "threaten" the system does not enlarge, modify, or contravene authority in the law implemented to protect the system from imprudent construction that can "jeopardize" it within the meaning of Section 161.053(1)(a). Disputed Terms The disputed terms are reasonably necessary or convenient, within the meaning of Section 370.021(1), for Respondent to issue coastal armoring permits in a manner that protects the beach-dune system from imprudent construction in accordance with Sections 161.053(1)(a) and 161.053(5)(a). The disputed terms do not enlarge, modify, or contravene the specific provisions of law implemented in Sections 161.052 and 161.053. Written Rules: Inadequate Standards; Arbitrary Or Capricious Petitioner claims, inter alia, that the disputed terms are an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8)(d) and (e). Petitioner asserts that the disputed terms are vague, without adequate standards to guide agency decisions, vest unbridled discretion in the agency, and are arbitrary or capricious. Quasi-Scientific Terms: Feasible The term "feasible" is a dual use term with both general and scientific application. Although its general meaning has no technical significance, its scientific meaning has technical significance in an array of disciplines including engineering. 19/ Technical and economic feasibility assessments are indispensable incidents of the expertise reasonably necessary to carry out the duties, obligations, powers, and responsibilities conferred on Respondent by the legislature. Within the scope of that expertise, engineers customarily employ an array of techniques to determine economic feasibility, including costs over the life of the project and many other cost- benefit assessments. The absence of a written definition of "feasible" in Respondent's rule does not render the rule vague, subject to unbridled discretion, arbitrary, or capricious within the meaning of Sections 120.52(8)(d) and (e). The term "feasible" is a quasi-scientific term or word of art that has an established technical meaning or application within the scope of Respondent's expertise. 20/ The exercise of agency discretion is constrained by any established definition that is appropriate under the facts and circumstances surrounding a particular application. Unscientific Terms The terms "necessity", "clearly justify", "similar structures", "segment of the shoreline", and "threaten" are neither scientific terms nor words of art. None of the quoted terms have an established technical meaning or application within the scope of Respondent's expertise. Terms that are neither defined in the enabling legislation, scientific terms, nor words of art, should be given their plain and ordinary meaning. 21/ The plain and ordinary meanings of the quoted terms are vague for purposes of Section 120.52(8)(d). Persons of common understanding and intelligence may only guess at the meaning of the quoted terms when applying for coastal armoring permits. 22/ No competent and substantial evidence in this proceeding showed that the meaning of any one quoted term is prescribed by custom and usage or technical significance within the scope of Respondent's expertise. Respondent's rules fail to establish adequate standards for agency decisions within the meaning of Section 120.52(8)(d). No criteria are provided by rule or otherwise which would enable a permit applicant or a court to know whether an applicant has satisfied the requirements implicit in each of the quoted terms. 23/ For example, no criteria inform an applicant that: the "necessity" for proposed armoring must be "clearly justified" by computer model results which must be verifiable through replication on the computer model used exclusively by Respondent for such purposes since 1988; 24/ "similar structures" can be either similar to armoring devices or similar to upland structures with dune viability and proximity to the shoreline that are assumed to be similarly situated to the dune viability and shoreline proximity associated with the proposed armoring but not verified as such; 25/ and "segment of shoreline" can include any part of the shoreline from one mile north or south of the proposed armoring site to at least nine miles north or south of the site excluding publicly owned shoreline. 26/ The vagueness of the quoted terms and the absence of adequate standards to constrain the exercise of agency discretion vests unbridled discretion in Respondent, within the meaning of Section 120.52(8)(d). The same infirmities render the quoted terms arbitrary or capricious within the meaning of Section 120.52(8)(e). 27/ Challenge To Agency Statements: Interpreting The Written Rules In interpreting and implementing its written rules, Respondent consistently applies a multi-tiered test to assess applications for rigid coastal armoring permits. First, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rules 16B-33.005(1), 16B-33.005(3)(g), and 16B-33.007(7). Second, the applicant must show that direct and cumulative impacts on the beach-dune system and marine turtles, caused by the location of coastal armoring and by the armoring itself, clearly justify armoring within the meaning of Section 161.053(5)(a)3. 28/ In the cumulative impacts assessment, Respondent considers "similar structures" and the "threat" to that "segment of shoreline" within the meaning of Rule 16B- 33.005(7). If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protection within the meaning of Rule 16B-33.005(3)(c). Respondent has interpreted and applied the disputed terms through agency statements in evidence in this proceeding. Petitioner asserts that those agency statements prescribe, interpret, and implement agency policy that has general applicability within the meaning of Section 120.52(16). Petitioner asserts that the agency statements are invalid rules because Respondent materially failed to comply with statutory rulemaking requirements within the meaning of Section 120.52(8)(a). In addition, Petitioner claims the unwritten rules are invalid pursuant to Sections 120.52(8)(b)-(e). A rule is statutorily defined in Section 120.52(16) to include: . . . any agency statement of general applicability that implements, interprets, or prescribes law or policy . . . and includes any requirement . . . not specifically required by statute or by an existing rule. . . . (emphasis supplied) A policy statement that does not satisfy the test of general applicability in Section 120.52(16) is incipient policy. 29/ A policy statement that satisfies the test of general applicability but has not been promulgated in compliance with statutory rulemaking requirements is an unwritten rule. 30/ Incipient policy can be prescribed, interpreted, and implemented without complying with statutory rulemaking requirements. In an administrative proceeding, an agency must explicate or prove up any incipient policy required to satisfy the ultimate "burden of persuasion," if the agency is the petitioner, or to explicate that policy required to go forward with the evidence if the agency is the respondent. 31/ When incipient policy emerges into general applicability, it loses its incipient character, notwithstanding the form or appellation attributed to it by the agency, and emerges as a rule. 32/ With two exceptions, 33/ agency policy that emerges as an unwritten rule is unenforceable in an administrative proceeding until it is promulgated in compliance with statutory rulemaking requirements. 34/ Incipient Policy The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy specifically prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioner's home is located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. The 1990 policy is applicable to all coastal armoring permits in the state, except Petitioner's. It was not promulgated in accordance with statutory rulemaking requirements prior to 1993 when the 1990 policy was promulgated, in modified form, in Respondent's proposed rules. 35/ However, the general applicability of the 1990 policy is not at issue in this proceeding. The proposed bulkhead is exempt from the substantive provisions of the 1990 policy in its original form and in any form included in Respondent's proposed rules. Therefore, the 1990 policy is not being used to determine the substantial interests of Petitioner within the meaning of Sections 120.535(2)(a) and 120.56(1). The proposed bulkhead is exempt from the prohibition against armoring in the Archie Carr National Wildlife Refuge. It is also exempt from the requirement that proposed armoring must be vulnerable to a five year RISE. Except as stated hereinafter, general vulnerability provisions under the pre- 1990 policy and requirements for Petitioner's home to be vulnerable to a specific 10 or 15 year RISE lost any general applicability they may have once had when they were superseded by the 1990 policy. They are applicable, if at all, only to Petitioner. Agency statements interpreting the terms "similar structures", "segment of shoreline", and "threaten" in Rule 16B- 33.005(7) are properly characterized as incipient policy. The statements fail to satisfy the test of general applicability in Section 120.52(16). The evidence showed that Respondent interprets and implements these terms with little, if any, consistency. Unwritten Rules Three agency statements are applied by Respondent to all applicants for coastal armoring, including Petitioner. Each statement implements, interprets, or prescribes policy within the meaning of Section 120.52(16). Since 1988, Respondent requires all applicants for coastal armoring permits to clearly justify the necessity for coastal armoring with computer model results that demonstrate an upland structure is vulnerable to a specific RISE. 36/ Computer modeling analyzes certain scientific parameters to mathematically simulate storm surge elevation and erosion for a specific RISE. Computer model results must show that the eroded profile of a specific RISE will reach the foundations of the upland structure. Respondent uses a computer model known as the Dean erosion model. Computer model results submitted by applicants must be verified through replication on the Dean erosion model. 37/ Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. The 2:1 requirement compares the cost of relocating the upland structure ("relocation") or dune enhancement or modification ("enhancement") to the cost of proposed armoring. If the cost of relocation or enhancement is no more than twice the cost of proposed armoring, then relocation or enhancement is economically feasible. 8.02(a) Dean Model Requirements: Failure To Promulgate Applicable statutes and rules do not require computer model results in order to clearly justify the necessity for armoring. Nor do applicable statutes and rules prescribe a particular type of computer model to be used in assessing vulnerability of the upland structure. However, Respondent in fact imposes both requirements to clearly justify the necessity for armoring. The evidence showed that Respondent has a longstanding requirement for computer model results. That requirement implements, interprets, or prescribes policy within the meaning of Section 120.52(16). The requirement affects the substantial interests of all applicants for coastal armoring permits. 38/ Respondent does not in form or appellation characterize 39/ the Dean erosion model as the only computer model that may be used to assess vulnerability. Nor does Respondent attempt to explicate the reasonableness of such a requirement. In effect, however, Respondent requires, without exception, for the results of other computer models to be verified through replication on the Dean erosion model. Respondent's exclusive application of the Dean erosion model implements, interprets, or prescribes policy within the meaning of Section 120.52(16). The requirement affects the substantial interests of all applicants for coastal armoring permits. Respondent's requirement that vulnerability to a specific RISE must be demonstrated with computer model results is a policy statement of general applicability in Section 120.52(16). Respondent's requirement that vulnerability to a specific RISE must be demonstrated, or verified through replication, on the Dean erosion model is also a policy statement of general applicability. Both requirements are intended by their own effect to require compliance, are consistently applied to a broad class of persons, or otherwise have the direct and consistent effect of law (collectively, the "Dean model requirements"). 40/ The Dean model requirements are rules, within the meaning of Section 120.52(16). Each requirement is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(a). Respondent has materially failed to promulgate its rules in compliance with statutory rulemaking requirements. 8.02(b) Dean Model Requirements: Inadequate Standards; Arbitrary or Capricious The Dean model requirements lack adequate standards to guide the exercise of administrative discretion in the selection of computer input variables. In the absence of such standards, the selection of input variables lacks sufficient constraints to prevent unbridled discretion, and is arbitrary or capricious, within the meaning of Sections 120.52(8)(d) and (e). 8.02(b)[1] Input Variables: Local Calibration Data Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. Results of an erosion model that has not been properly calibrated may be unreliable. 41/ The most accurate method of calibration uses site specific data. 42/ Neither the original Dean erosion model utilized by Respondent to support its recommendation of approval to the Governor and Cabinet nor the EDUNE erosion model utilized by Petitioner's expert coastal engineer during the formal hearing were calibrated using site specific data for Petitioner's home. Both the original Dean and EDUNE computer models were calibrated using erosion data from the 1985 Thanksgiving Day storm (the "Thanksgiving Day storm"). No storm hydrograph for the Thanksgiving Day storm is available for Indian River County, and no site specific data for that storm are available for Petitioner's home. In the absence of site specific data, the accuracy of an erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data. The selection of proper input variables, in the absence of site specific data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results. An erosion factor of 1.5 was properly used in the original Dean model. It showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioner's home. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioner's expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioner's home. The A factor is another input variable used in erosion modeling. It defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. The A factor can be increased by fitting the shoreline to a depth beyond the nearshore breaking wave. The A factors used in the original Dean model and the EDUNE model were appropriate. Each model was properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent prepared a revised Dean model for the formal hearing. The revised Dean model used an erosion factor of 1.0 and an A factor of 0.19 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundation of Petitioner's home. The revised Dean model decreased the erosive force of the projected RISE by fitting the shoreline to a depth beyond the nearshore breaking wave. The discrepancy in results between the original and revised Dean model is significant. It elucidates the need for standards to prevent agency employees from acting with unrestrained discretion to enforce invisible policy. 43/ 8.02(b)[2] Input Variables: Storm Surge And Erosion Standards for the selection of input variables are needed to guide agency discretion in prescribing, interpreting, and implementing government policy of general applicability. The selection of those standards should be made in a manner that serves the purposes of the specific application and the larger purposes of protecting the beach-dune system from imprudent construction that can increase the effects of storm force. Storm force may be measured by storm surge or erosion. Both characteristics of storm force present threats to upland structures and to the beach-dune system. Both characteristics of storm force must be considered in assessing specific applications for coastal armoring permits. Respondent is required in Sections 161.053(1)(a) and 161.053(5)(a) to issue coastal armoring permits in a manner that protects the beach-dune system from imprudent construction that can accelerate "erosion." For the same purpose, Respondent is required in Section 161.053(1)(a) to establish a CCCL to define that portion of the beach-dune system subject to severe "storm surge." One of the complexities faced in calibrating computer models is that storm surge and erosive force may not be proportional in an actual storm. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. The Dean model requirements lack adequate standards for selecting input variables to establish the proper proportion for storm surge and erosive force. If a computer model is calibrated for greater erosive force, the results can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundation of an applicant's home. Conversely, if a computer model is calibrated for less erosive force, the results can be used to demonstrate that the storm surge elevation for the same storm produces an eroded profile that does not reach the foundation of an applicant's home. To the extent computer models emphasize erosive force over storm surge, vulnerability for coastal armoring is subject to a standard that is different from the design criteria for construction seaward of the CCCL. Design criteria for foundations and armoring devices are assessed in Respondent's rules by reference to storm surge. 44/ However, Respondent assesses vulnerability in terms of both storm surge and sediment characteristics. 45/ In the action instituted pursuant to Section 120.57(1), Respondent failed to explicate a justification for imposing disparate standards for design and vulnerability requirements and failed to articulate standards to guide agency decisions in applying separate standards to each requirement. Standards for input variables must be established to assure that computer model results measure storm surge and erosive force in a manner that accurately assesses a particular application and protects the beach-dune system from imprudent construction. Without such standards, the objectivity and reliability intended for a computer model become an illusion. The computer model is transformed into a panoply for invisible policy making. 46/ The lack of adequate standards for selecting input variables vests unbridled discretion in Respondent and renders the Dean model requirements arbitrary or capricious, within the meaning of Sections 120.52(8)(d) and (e). Respondent's written rules, at a minimum, should notify applicants that the necessity for coastal armoring must be clearly justified with computer model results demonstrating vulnerability to a specific RISE. Applicants should also be informed that computer model results must be verified by replication on the Dean erosion model. To the extent it is feasible to include actual input variables in the written rules, input variables should be disclosed. To the extent disclosure is infeasible, applicant's should know: that their substantial interests may depend on the input variables selected; the standards used to select the actual input variables; and the identity and source of documents containing information relied on by Respondent to guide its assessment of each application. Respondent is in the best position to determine, within the scope of its expertise, the most efficacious means of complying with statutory rulemaking requirements. 8.02(c) The 2:1 Requirement: Failure To Promulgate The 2:1 requirement prescribes, interprets, and implements policy within the meaning of Section 120.52(16). The 2:1 requirement affects the substantial interests of all applicants for coastal armoring. It requires compliance with Rule 16B-33.005(3)(c) by demonstrating that relocation or enhancement are more than twice as costly as the proposed armoring. Respondent's 2:1 requirement satisfies the test of general applicability in Section 120.52(16). 47/ It is intended by its own effect to require compliance, is consistently applied to all applicants for coastal armoring permits, or otherwise has the direct and consistent effect of law. 48/ Respondent does not in form or appellation characterize 49/ the 2:1 requirement as a rule. In effect, however, Respondent implements and interprets policy that has general applicability by requiring, without exception, compliance with the 2:1 requirement in order to show that proposed armoring is the only feasible means of protection. The 2:1 requirement is a rule, within the meaning of Section 120.52(16), and an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(a). Respondent has materially failed to promulgate its rule in compliance with statutory rulemaking requirements. 8.02(d) The 2:1 Requirement: Modifies Or Contravenes Law Implemented Engineers customarily employ an array of techniques to determine economic feasibility. Any of the techniques employed by engineers to assess feasibility are included in the feasibility requirement that is authorized by reasonable implication in the law implemented in Sections 161.052 and 161.053. Applicants for coastal armoring may use any engineering technique that is appropriate under the circumstances to comply with Rule 16B-33.005(3)(c). By selecting one test, to the exclusion of all others, Respondent has imposed a test for feasibility that is more restrictive than the authorized test. Respondent has modified or contravened the feasibility requirement authorized in Sections 161.052 and 161.053. 50/ For that reason, the 2:1 requirement is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c). 8.02(e) The 2:1 Requirement: Inadequate Standards; Arbitrary or Capricious The exercise of agency discretion in assessing economic feasibility can involve both scientific and unscientific applications. To that extent, agency discretion required to determine economic feasibility, unlike that required to determine technical feasibility, is more easily expanded beyond the scope of agency expertise. Engineers routinely prepare economic feasibility assessments. However, the discretion required to determine which costs will be included in such an assessment is not exclusively within the scope of agency expertise. For example, relocation costs considered by Respondent in applying the 2:1 requirement do not include: the contractor's overhead or contingencies; remodeling costs, including the cost of repairing damage to restore the structure to pre-move condition; landscaping the new site to conform to original site specifications; and the cost of moving pools, patios, retaining walls or any other ineligible structure. 51/ The cost of the proposed armoring includes costs associated with the use of related state owned property. 52/ The lack of standards to guide agency discretion in determining costs to be included in the assessment renders the 2:1 requirement invalid within the meaning of Sections 120.52(8)(d) and (e).
Findings Of Fact On December 28, 1995, the Department issued a written notice of intent to suspend the Petitioner, White Construction Co., Inc.'s (White) Certificate of Qualification, pursuant to Section 337.16, Florida Statutes. On April 15, 1995, the Department issued a written notice of intent to suspend the Petitioner, Clark Construction Co., Inc.'s (Clark) Certificate of Qualification, pursuant to that statute. The notices asserted that the allowed time under the Department's contracts with White and Clark had expired and that the contract work had not been completed in the case of each contract with those entities. The notices further stated the Department's intent to suspend the Certificates of Qualification and those of their affiliates, as well as the procedures to be followed and the applicable time limits. Both companies filed timely requests for formal hearings, pursuant to Section 120.57(1), Florida Statutes, and those cases are pending at the present time. Additionally, White and Clark challenged the written notices of intent to suspend as being statements which constitute rules which have not been promulgated in accordance with Section 120.54, Florida Statutes, in alleged violation of Section 120.535, Florida Statutes. In taking action, such as suspension or revocation of a contractor's Certificate of Qualification, pursuant to Section 337.16(1), Florida Statutes, the Department's general practice is to issue a written notice which states its reasons for asserting that unsatisfactory progress is being made on a construction project in accordance with the contract terms or for asserting that the allowed contract time has expired. It also informs the contractor of the Department's intent to deny, suspend, or revoke his or her Certificate of Qualification and informs the contractor of his or her right to a hearing, as well as the procedure which must be followed and applicable time limits. The challenged statements contained in the notices of intent issued to Clark and White are consistent with the Department's general practice of implementing Section 337.16(1)(b), Florida Statutes, by informing a delinquent contractor in writing of the Department's intent to deny, suspend or revoke his or her Certificate of Qualification, informing the contractor of his or her right to a hearing, the procedure which must be followed and the applicable time limits. The challenged statements contained in the notices issued to Clark and White are representative of the language generally included in Department notices of intent to deny, suspend or revoke a Certificate of Qualification. The challenged statements provide as follows: * * * Pursuant to Florida Statute 337.16 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days from receipt of this notice. Should your Certificate of Qualifi- cation be suspended or revoked, you shall also be disapproved as a subcontractor on any Department project during the period of suspension or revocation. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency proceedings, Mail Station 58, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0459 within ten (10) days from receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. * * * Failure to timely request an Administrative Hearing within the specified time will result in the contract being declared delinquent. The Department presented no evidence that rule making is not feasible or is not practicable.
