The Issue Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
Findings Of Fact The Parties. The Petitioner, Oscar Jacobs, is an Afro-American. His race is black. The Respondent, the Florida Department of the Lottery (hereinafter referred to as the "Department"), is an agency of the State of Florida. District 2 of the Department. In the fall of 1987 the Department created a district office in Panama City, Florida. The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties. Steve Sumner was hired as the District Manager for the District in October of 1987. Mr. Sumner hired the staff of the District in November of 1987. The District had the following type of positions: District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans. Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description. Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II. Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description. A Receptionist. An Accountant I. An Administrative Assistant I. Clerical positions. Relevant History of Mr. Jacobs' Employment at the District. In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white. Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white. Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white. At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs. Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance." In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I. In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white. In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District. Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position. At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services. During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff. Prior to August of 1990, Ms. Doll resigned. In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted. Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II. As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR. Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs. Ms. Davis was promoted in September of 1990 to fill the other LSR II position. Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990. Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper. In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white. From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs. Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded. A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs. By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job. In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition. In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23. For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation: Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work. Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II. Petitioner's exhibit 11. At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992. Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change. Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR. In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four. As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification. As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes. In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office. Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position. At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to. As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position. Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position. Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position. Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move. Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits. The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs. Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority. Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs. All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings. Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs: Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992. Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve. The Impact of Routes on Mr. Jacobs' Performance. In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District. Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her. When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route. Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance. In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield). The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white. The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs. The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs. The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route. Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half. The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race. Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation. The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard." The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes. Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts. Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota. LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers. Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit. Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas. Leave Policies. Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work. The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy. Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency. Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given. The two week notice requirement was waived for virtually every employee, including Mr. Jacobs. On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race. During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs. The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department. Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children. Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient. Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe. Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital. After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital. Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital. Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately. Assignment of Department Vehicles. LSRs were assigned Department vehicles, (vans) for use in servicing Routes. In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van. Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State. Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement. To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers. In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year. Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles. In November of 1991, the mileage driven in the previous year by each LSR was as follows: Silcox 16,327 miles Chason 16,426 miles Davis 21,000 miles Jacobs 23,717 miles Edwards 24,000 miles Kissinger 30,000 miles Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy. Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy. The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van. Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger. Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district. Marketing Promotions. LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets. LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month. Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers. The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them. Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement. In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs. Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim. In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race. Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers. The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race. Miscellaneous Charges. The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race. The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race. Mr. Jacobs' Charge of Discrimination. Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race. On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing. In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race (black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as an LSR. See the attached charge of discrimination incorporated herein. The disputed issues of material fact, if any, are as listed below: Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr. Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me. Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work. The ultimate facts alleged and entitlement to relief are as listed below: I wish to have a formal post-investigative proceeding. I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs. I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs. At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II. Alleged Race Discrimination. The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races. The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion. Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department. Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
The Issue The issue in this case is whether the Department of Education (Respondent) acted properly within its authority to claim lottery winnings of Kevin Frye (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was a borrower, participating in the federal student loan program. Two of the loans involved funds disbursed in 2002, and the third involved funds disbursed in 2003. Repayment of the three loans was to begin in 2005. The Respondent acted as the guarantee agency for the Petitioner's three loans under the federal student loan program. The program provided that the Respondent was obligated to repay the loan in the event of default by the borrower. Such loans were regarded as in default after passage of a 270-day payment delinquency period. Lenders reported defaulted loans by filing claims with the Respondent. The Respondent paid the claims and initiated a collection process to obtain the funds from the borrowers. The Respondent became aware of the Petitioner's defaulted loans in February 2007, when claims were filed with the Respondent by the Petitioner's lender. The Respondent paid the claims and became the owner and holder of three promissory notes documenting the loans. By letter dated March 24, 2009, the Respondent notified the Lottery that the Petitioner had outstanding student loans in the amount of $5,788.08. The amount included accrued interest as of April 8, 2009. The letter stated that such interest would continue to accrue according to the terms of the notes. The letter requested that any lottery prize proceeds won by the Petitioner be transmitted to the Respondent to be credited towards the debt. On April 9, 2009, the Lottery delivered a check in the amount of $1,000 to the Respondent with a letter identifying the amount as lottery winnings of the Petitioner. By letter dated May 13, 2009, the Respondent advised the Petitioner that the lottery proceeds had been received and would be credited towards his student loan debt. The Petitioner's request for hearing stated that he had entered into and completed a "loan rehabilitation" program and that "there is no reflection in outstanding loan balance that coincides with the lottery winnings." Although the Respondent has a program designed to rehabilitate defaulted student loans, there was no evidence presented at the hearing that the Petitioner has entered into any rehabilitation agreement with the Respondent applicable to the debt obligations relevant to this dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Education enter a final order applying the $1,000 lottery prize winnings of Kevin Frye to the student loan debt referenced herein. DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 25th day of November, 2009. COPIES FURNISHED: Robert C. Large, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399 Kevin Frye 7429 Oakvista Circle Tampa, Florida 33634 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue How should the remainder of Petitioner's lottery prize winnings, which are currently held by the Department of Banking and Finance, be distributed in light of the provisions of Section 24.115, Florida Statutes?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about November 28, 1995, Petitioner presented for payment a lottery ticket that had a prize value of $1,560.00. By letter dated November 29, 1995, DOR certified to the Department of the Lottery (hereinafter referred to as "DOL") that Petitioner "owe[d] $1,319.88 in Title IV-D child support arrearages" as of the date of the letter. After receiving the letter, DOL transmitted the prize money to DBF. On or about December 26, 1995, DBF sent Petitioner a check in the amount of $240.12, along with a letter advising Petitioner that it was DBF's intention to give the balance ($1,319.88) of Petitioner's $1,560.00 lottery prize to DOR "in payment of [Petitioner's] debt." Petitioner disputed that he owed $1,319.88 in child support and requested an administrative hearing on the matter. In a Marital Settlement Agreement that Petitioner executed on May 10, 1991, he agreed to pay, through the State of Florida, $52.00 per week for the support of his and his wife's minor daughter. This Marital Settlement Agreement was approved and incorporated in a Final Judgement of Dissolution of [Petitioner's] Marriage, which was entered on July 29, 1991, in the Circuit Court of the Nineteenth Judicial Circuit in and for Okeechobee County. DOR's records reflect that, as of December 26, 1995, Petitioner owed $1,319.88 in past-due, court-ordered child support, and that, as of May 24, 1996 (the most recent date for which records were provided at the May 28, 1996, hearing in this case), Petitioner owed $1,436.72 in past-due, court-ordered child support. These records, however, do not reflect that, in March of 1994, the State of Florida received from the Internal Revenue Service, a $628.00 tax refund (for the 1993 tax year) owed Petitioner that should have been (but was not) credited to Petitioner's child support payment account. Accordingly, as of December 26, 1995, and May 24, 1996, Petitioner actually owed $691.88 and $808.72, respectively, in past-due, court-ordered child support.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Comptroller disburse the $1,319.88 that remains of Petitioner's lottery prize by issuing a state warrant to Petitioner in the amount of $511.16 and transferring the remaining $808.72 to DOR. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 96-0396 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondents in their joint proposed recommended order: 1-5. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted as true and incorporated in substance. 9-10. Accepted as true and incorporated in substance. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Josephine Schultz, Chief Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Child Support Enforcement Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32399 Nurrudin Alomgir 927 South "G" Street, Apartment 3 Lake Worth, Florida 33460
Findings Of Fact Findings regarding the RFP and all Petitioners On September 3, 1991, the Department issued RFP 92-005-LOT-TEN-P by which it sought proposals for the provision of advertising and related services to the Florida Lottery. During the following two weeks, the Department received written questions from would-be vendors. On October 3, 1991, the Department circulated Addendum 3 to the RFP which included numerous changes to the RFP and which provided written answers to the questions which were submitted to the Department prior to September 17. The Department of the Lottery had issued an earlier RFP to obtain substantially the same advertising and related services. The earlier procurement effort ended in a rejection of all bids and the initiation of the instant procurement effort. The timetable set forth in the RFP indicated that on a date certain the Department would make determinations of non-responsiveness in accordance with Section 3.2 and post a Notice of Non-responsive Technical Proposals. Only after responsiveness had been determined would responsive technical proposals be presented to an evaluation committee for scoring in accordance with the criteria set forth in the RFP. (RFP Section 2.6) In addition, Section 6 of the RFP provides that the evaluation committee shall complete an evaluation of all responsive proposals. All Petitioners timely submitted a proposal in response to RFP #92-005- LOT/TEN/P. The issuing officer for RFP #92-005-LOT/TEN/P is Mr. Russ Rothman, CPPO, Office of Purchasing, Florida Lottery, 250 Marriott Drive, Tallahassee, Florida 32301. As issuing officer, Mr. Russ Rothman served as agent of the Florida Department of the Lottery with respect to RFP #92-005-LOT/TEN/P, even though Mr. Rothman's regular employment is with the Department of Highway Safety and Motor Vehicles. The person most directly responsible for preparing the RFP #92-005- LOT/TEN/P was Mr. Russ Rothman. The person most directly responsible for initially determining whether each proposal was responsive or non-responsive was Mr. Russ Rothman. Respondent deemed the proposals of each Petitioner to be non-responsive for the reasons set forth in a Notice Of Non-Responsive Technical Proposal And/Or Non-Responsible Respondent, which notice was posted on October 28, 1991. (Respondent's Exhibit 10) The specific reasons stated in that notice are as follows: Respondent Determination Lintas Non-responsive. Failed to submit a TV commercial storyboard required by Section 5.9.6,B.6. Failed to complete Disclosure Affidavit question 7.b. The Ad Team Non-responsive. Failed to submit TV commercial storyboard (5.9.6,B.6) and 3 product or package designs (5.9.5,3.f). Absence of certification re: lack of audited financial statements (5.9.3,F). Ogilvy & Mather Non-responsive. Failed to submit all resumes and/or selection criteria (5.9.5,2) and 30 second radio spot (5.9.6,B.3). Proposal bond late (3.26). Apparent non- compliance with 3.8, "Conflict of Interest and Disclosure." Failed to complete Disclosure Affidavit, question 7. Beber Silverstein Non-responsive. Failed to present complete financial statements as required by Section 5.9.3,F). Footnotes were not included in any of the three years' statements; disclaimer of opinion on 1989 Statements of Operations and Cash Flows; absence of certification for lack of audited statements (1990 & 1988). Section 2.2 of the subject RFP contains the following definition of the terms "Responsive Proposal" and "Responsible Respondent." Responsive Proposal - A timely submitted proposal which conforms in all material respects to the RFP and which contains, in the manner required by this RFP, all documentation, drawings, information, plans, materials, certifications, affirmations, and documentation of qualifications and other matters required by the RFP. Responsible Respondent - A firm judged by the Lottery to be fully capable of providing the services required, considering security, integrity and financial condition. Section 2.6 of the subject RFP contains the following regarding the timetable for the procurement: October 15, 1991: Separately sealed technical and price proposals must be received at the Lottery's Headquarters, Purchasing Office, 250 Marriott Drive, Tallahassee, Florida 32301, no later than 2:00 p.m. Proposals must be addressed to the Issuing Officer as specified in Section 2.3. All technical proposals will be opened by Lottery employees starting at or after 2:01 p.m. at the Lottery Headquarters. The public may attend the opening but may not review any proposals submitted. The names of respondents will be read aloud, and the names of firms submitting "no proposal" responses will be read. Section 3.1 of the subject RFP contains the following provisions regarding "Mandatory Requirements:" The Lottery has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicate a mandatory requirement or condition. The words "should" or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not by itself cause rejection of a proposal. Section 3.2 of the subject RFP contains the following relevant provisions regarding "Non-Responsive Proposals:" Proposals which do not meet all material requirements of this RFP or which fail to provide all required information, documents, or materials will be rejected as non- responsive. Material requirements of the RFP are those set forth as mandatory, or without which an adequate analysis and comparison of proposals is impossible, or those which affect the competitiveness of proposals or the cost to the State. The Lottery reserves the right to determine which proposals meet the material requirements of the RFP. Respondents which in the Lottery's judgment, after the investigations required by Section 24.111, Florida Statutes, fail to demonstrate sufficient financial responsibility, security and integrity, shall be rejected as non-responsible. Section 3.5 of the subject RFP includes the following provisions regarding an opportunity to ask questions about the RFP: Questions concerning conditions and specifications of this RFP, and/or requests for changes to conditions and specifications must be in writing, addressed to the Issuing Officer, and received no later than 5:00 p.m. on September 17, 1991. The Lottery will prepare tentative responses to all questions and/or requests for changes, timely received, for discussion at a pre-proposal conference to be held at 2:00 p.m., September 24, 1991. Copies of questions and final answers, along with any changes to the RFP resulting from or following discussion at the pre-proposal conference, will be mailed to all firms who were furnished a copy of this RFP by the Lottery, in the form of a written addendum, as soon as reasonably practicable. Respondents submitting a proposal must submit by the proposal deadline written acknowledgment of any addendum. In response to a vendor inquiry as to the meaning of the term "minor irregularity," the Department responded in the last addendum to the RFP by citing and quoting Rule 13A-1.001(32), Florida Administrative Code, which reads: Minor Irregularity - A variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Sections 3.7 and 3.8 of the subject RFP contain the following provisions regarding required disclosures.: Vendor Information and Disclosure. Respondents must provide information and disclosures required by Section 24.111, Florida Statutes. Copies of the Lottery's Vendor Information Addendum and Disclosure Affidavit Forms to be completed are attached hereto as Attachments "A" and "B." These forms must be properly completed, executed and submitted with Respondent's technical proposal. Conflict of Interest and Disclosure. The award hereunder is subject to the provisions of Chapters 24 and 112, Florida Statutes. Respondents must disclose with their proposals whether any officer, director, employee or agent is also an officer or an employee of the Lottery, the State of Florida, or any of its agencies. All firms must disclose the name of any state officer or employee who owns, directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its branches or affiliates. All Respondents must also disclose the name of any employee, agent, lobbyist, previous employee of the Lottery, or other person, who has received or will receive compensation of any kind, or who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Lottery in connection with this procurement. Section 3.26 of the subject RFP contains the following provisions regarding the required proposal bond: Each Respondent is required to accompany its technical proposal with a certified or cashier's check or bid bond in the amount of $125,000 or have on file with the Department of Lottery an annual bid bond of at least $125,000. The check or bid bond shall be payable to the Department of Lottery. This check/bond is to insure against withdrawal from competition subsequent to submitting of the proposal and to guarantee performance when the Contract is awarded. This check/bond will be returned to all unsuccessful Respondents immediately upon the execution of the Contract. Sections 5.1, 5.2, and 5.3 of the subject RFP include the following requirements regarding the preparation and submission of proposals: Proposal Labeling. Respondent's technical proposal MUST be in a separate sealed envelope or other container and MUST be identified as the Respondent's technical proposal. The face of the envelope or other container shall contain the following information: Request for Proposal for Advertising and Related Services 2:00 p.m. October 15, 1991 Technical Proposal Name of Respondent Each Respondent's price proposal MUST be in a separate sealed envelope and MUST be identified as the Respondent's price proposal. The face of the envelope shall contain the following information: Request for Proposal for Advertising and Related Services 2:00 p.m. October 15, 1991 Price Proposal Name of Respondent Copies of Proposals. Respondents shall deliver an ORIGINAL AND SIX COPIES OF THE TECHNICAL PROPOSAL AND ONE COPY OF THE PRICE PROPOSAL AND CREATIVE SAMPLES to the Lottery no later than the date and time in which all proposals must be timely submitted. Information and materials submitted in response to a previous RFP will not be considered in connection with this RFP #92-005-LOT/TEN/P. This is not intended to preclude a respondent from submitting information or materials previously submitted provided they conform to the requirements of this RFP. Proposal Submission. It is the Respondent's responsibility to ensure that its proposal is delivered by the proper time at the place of the proposal opening. Proposals which for any reason are not timely received will not be considered. Late proposals will be declared non- responsive, and will not be scored. Unsealed and/or unsigned proposals by telegram, telephone, or facsimile transmission or other means are not acceptable, and will be declared non-responsive, and will not be scored. A proposal may not be altered after opening. Section 5.9.3 of the subject RFP describes as follows the documentation which must be submitted to demonstrate vendor responsibility: The proposing firm must submit the following documentation to establish that it is a responsible respondent: Vendor Information Addendum (Attachment A) Disclosure Affidavit (Attachment B) Sworn Statement on Public Entity Crimes (Attachment C) Statement of Agreement to Abide by the Lottery's Code of Ethics, Rule 53ER88- 79(3), Florida Administrative Code (Attachment D) Proposal Bond required by Section 3.26, in the amount of $125,000. Certified financial statements in customary form for the last three (3) fiscal years if they are completed, including an auditor's report. Certified financial statements must be the result of an audit of the Respondent's records in accordance with generally accepted auditing standards by a certified public accountant (CPA). If certified financial statements including an auditor's report were not prepared for one or more of the last three fiscal years respondent shall certify that fact, and shall submit in lieu thereof review reports of financial statements prepared by a CPA for the same period of time. The Lottery will not accept, in lieu thereof, financial statements prepared in whole or in part by an accountant as a result of a compilation engagement. If the parent company of Respondent intends to financially guarantee Respondent's performance of contractual obligations, then Respondent may, to satisfy this requirement, submit such financial statements of the parent company in lieu of its own plus a binding letter from the parent company expressing its commitment to financially guarantee the Respondent. In such event, the parent company shall be required to sign the Contract as Guarantor and shall be held accountable for all terms and conditions of the Contract. The language in Section 5.9.3,F which conditions the use of review reports on the submission of a certificate that there are no audited financial statements was for the purpose of minimizing the possibility that a vendor who had received an adverse audited opinion might conceal the adverse opinion from the Department by obtaining and submitting a favorable review report which did not disclose the adverse opinion. Section 5.9.4 of the subject RFP addresses the subject of "Firm Qualifications." The opening sentence of Section 5.9.4 reads as follows: "At minimum, each Respondent must provide the following information which demonstrates the Respondent's ability to provide the services requested." Section 5.9.5 of the subject RFP includes the following provisions regarding personnel qualifications: Provide the following information: Address the firm's plans for staffing the Lottery account. Include position titles, numbers, duties and responsibilities, and names of incumbents proposed to work on the Lottery account. Include both agency and subcontractor personnel. Resumes not to exceed one page each in length of all agency and subcontractor personnel who would be compensated in accordance with section 5.11.1 of this RFP, with a statement identifying the percentage of time, calculated annually, of each person who will work on the Lottery account. If recruitment of personnel to fill a position will be required, indicate firm's criteria for selection including, as appropriate, education, experience, knowledge, skills and abilities, etc. Creative samples (one copy of each) previously produced for the Respondent with the participation of key members of the proposed Lottery creative team and equal to the quality of the products proposed in your marketing plan, to include: * * * f) Three examples of product design or package design. Section 5.9.6 of the subject RFP contains the following provisions requiring a "Plan of Service:" Each Respondent shall provide a written statement of the firm's understanding of the services requested herein as well as a detailed written plan outlining how the firm proposes to go about providing the services. It is the intent of the Lottery that the Plan of Service be based on the premise that all products and product attributes remain as they are now. The plan of service shall consist of the following information and materials: A proposed advertising approach for the Florida Lottery which addresses the following items: A two-year summary outline advertising plan. Respondents shall include recommendations for advertising and promotions, and shall provide a plan for progress reporting, and ongoing evaluation and monitoring. A proposed one-year timetable for advertising, showing development of creative, production, approval, placement and run-time. Plan, Script and Comprehensive artistic representations (comps) of the following: A detailed media plan for an eight (8) week Florida Lottery Instant Game which has a $1,250,000 budget; A name, ticket design and prize structure for the Instant Game; A 30-second radio spot for the Instant Game; A print ad for newspaper or magazine placement for the Instant Game; A point-of-sale example for the Instant Game; A television commercial storyboard. All exhibits must be permanently marked or labeled, with identification of the proposing firm, and the specific section(s) of the RFP to which they respond. The requirement for submission of a television commercial storyboard was elaborated upon by responses which the Department made to two distinct questions submitted by the firms, Bozell, Inc., and West & Company. West & Company asked if proposers were prohibited from submitting fully executed television commercials and the Department responded that proposers were prohibited from submitting fully executed television commercials in complying with the RFP requirement for a television commercial storyboard. Bozell submitted a much more elaborate question in two parts. First, Bozell asked if a proposer could submit a television commercial in a more finished form using an animatic form as an example of a more finished form. The Department respondent in the negative. Second, Bozell asked if a proposer could submit such other more finished forms of television commercials in addition to the storyboard. Again, the Department answered in the negative. In responding thusly, the Department clearly indicated that it desired only traditional two-dimensional storyboards and would not accept more finished forms of television commercial concepts such as animatics. Also, the Lottery indicated that it did not wish to receive television commercial concepts in any form other than the traditional two-dimensional storyboard. The term "television commercial storyboard " is not defined in the RFP, but no definition is really necessary because the term has a clearly understood meaning in the advertising industry. It means a two-dimensional illustration of an advertising concept, presented on stiff cardboard or some similar material, and containing art work (illustrations or still photographs) to demonstrate the visual concept, and containing written words to demonstrate the text and/or describe any special effects. Television commercial storyboards have been in common use since the first days of television advertising and continue to be in common use today. Much more recently, especially since the advent of video cameras, alternative ways of presenting advertising concepts have come into popular use. These newer alternatives include video presentations, one type of which is known in the trade as "animatics," and another type of which is referred to as "stealamatics" or "ripamatics." An "animatic" is, in essence, a series of artistic drawings which is recorded on video. The drawings are developed specifically for a given "animatic" and are presented on the video in a manner which conveys the scenes and sequences in a proposed commercial. An "animatic" typically looks very much like a rough moving cartoon. More often than not an animatic will also include a sound track with a rough version of the words or music for the proposed commercial. An "animatic" is a more finished product than a two-dimensional storyboard because it more nearly resembles the format of the final version of the proposed concept. A "stealamatic" or a "ripamatic" is a video recording typically constructed from a variety of existing film footage and voice and music recordings. The film and sound used in a "stealamatic" or "ripamatic" frequently belong to people other than those who are creating the video, hence the name. "Stealamatics" and "ripamatics" are, in essence, a collage of second- hand images and sounds created for other purposes which are roughly edited together to demonstrate the creative concept of a proposed commercial. The video footage and sound track of a typical "stealamatic" or "ripamatic" is not of television commercial air quality and is not a finished product that can be used for actual advertising. The typical "stealamatic" or "ripamatic" is, in essence, a rough draft of a television commercial designed to demonstrate the primary ingredients of an advertising concept. Although rough, the typical "stealamatic" or "ripamatic" is a more finished product than an "animatic" in the sense that it more closely resembles the finished product than does an "animatic." If the concept of a proposed commercial involves critical timing, special effects, humor, or emotion, a "stealamatic" video is the most effective way, and often the only practical way, to present such a concept. "Animatics" and "stealamatics/ripamatics" are now commonly used in the presentation of advertising concepts in lieu of the old-fashioned, but still often useful, two-dimensional storyboards; they are frequent substitutes for two-dimensional storyboards. But "animatics" and "stealamatics/ripamatics" have not become storyboards and the term "television commercial storyboard" still means a two-dimensional presentation on a board-like material. Section 6.1 of the subject RFP contains the following provisions with regard to the allocation of points during the evaluation of the technical proposals: Firm Qualifications. - (Maximum 31 points) Size and Resources - Maximum 5 points Advertising Experience - Maximum 16 points Example of a Complete Campaign - Maximum 10 points Personnel Qualifications. - (Maximum 18 points) Staffing (numbers, levels, roles) - Maximum 5 points Resumes - Maximum 5 points Creative Samples - Maximum 8 points 6.1.3. Plan of Service - (Maximum 16 points) Advertising Plan and Timetable - Maximum 8 points Plan, Script and Artistic - Maximum 8 points Representations 6.1.4. Certified Minority Business Enterprise Participation. - (Maximum 10 points) Authorized Expenses - Maximum 5 points (1 point for each 2/10 percent (.2%) of participation) Agency Compensation - Maximum 5 points (Respondent's price) (1 point for each 3 percent (3%) of participation) Section 5.9.3 of the subject RFP requires that the proposing firm must, among other things, submit a "Disclosure Affidavit." The Disclosure Affidavit is attached to the RFP and is designated as Attachment B. All proposing firms who were corporations were required to answer Question 7 on Attachment B. Question 7 on Attachment B reads as follows: 7. Please complete either 7a or 7b, whichever is appropriate. RESPONDENT is not a publicly traded corporation. The names and addresses of the shareholders of RESPONDENT are as follows: The above-named persons constitute all of the shareholders of RESPONDENT. RESPONDENT is a publicly traded corporation. The names and addresses of the shareholders of RESPONDENT which own 5% or more of the corporate stock are as follows: The above-named persons constitute all of the shareholders of RESPONDENT which own 5% or more of the corporate stock. Findings regarding the Ad Team of Florida, Inc. Paragraph 5.9.6,B,6 of the RFP (as amended by Addendum 3) requires the submission of a television commercial storyboard. The Ad Team attempted to comply with this provision by submitting a video cassette which contained two short video presentations illustrating proposed advertising concepts. One of these presentations, titled The Fortune Teller, is what is known in the advertising business as an "animatic;" a rough cartoon with some animation and a sound track. The other of these presentations, titled Stars and Stripes, is what is known in the advertising business as a "stealamatic" or "ripamatic." Neither of the presentations on the video cassette submitted by the Ad Team is a television commercial storyboard. Section 5.9.5,3,F requires that a bidder provide three examples of product design or package design that, (1) were previously produced by the bidder, and (2) that were produced with the participation of key members of the proposed Lottery creative team. At the time of submission of its proposal, the Ad Team did not have three examples of product or package design that had earlier been produced with the participation of key members of the proposed Lottery team. Therefore, the Ad Team could not and did not submit three examples of product design or package design that had previously been produced with the participation of key members of the Lottery team. The Ad Team's failure to submit three examples of package or product design did not change the pricing of the proposal submitted to the Department by the Ad Team. The Ad Team did not gain a competitive advantage by virtue of its failure to submit three examples of product or package design. The Ad Team submitted complete review reports of financial statements for the last three years. The Ad Team did not submit any document certifying that no audited financial statements had been prepared for the Ad Team for the past three fiscal years. The Ad Team did not gain a competitive advantage by virtue of its failure to submit the certification that it had no audited financial statements for the past three years. The failure to submit the subject certification leaves the Department with no basis in the proposal materials for having confidence that no adverse audited statements are being concealed, and to that extent diminishes the extent to which it is prudent for the Department to rely on the financial statements submitted. Findings regarding Beber Silverstein & Partners Advertising, Inc. The only issue regarding the proposal submitted by Beber Silverstein relates to its efforts to comply with the requirements of Section 5.9.3,F of the RFP. In response to the requirements of that section of the RFP, Beber Silverstein supplied financial statements for the years 1988, 1989, and 1990. However, the footnotes to all of these financial statements were inadvertently omitted from Beber Silverstein's proposal. The footnotes were prepared by Beber Silversmith's accountants at the time the financial statements were prepared and were in Beber Silverstein's possession. The footnotes were simply inadvertently omitted during the preparation of Beber Silverstein's proposal. The Department of the Lottery knew at the time it reviewed Beber Silverstein's proposal for responsiveness that the vendor possessed the footnotes to the financial statements. In fact, the Department had previously reviewed these footnotes in Beber Silverstein's response to the first Request for Proposal earlier during 1991 when Beber Silverstein's proposal in the earlier RFP was evaluated by the Department. Beber Silverstein could have supplied the Department with the subject footnotes immediately after the omission was brought to Beber Silverstein's attention. The omission of the footnotes did not affect the cost or price of Beber Silverstein's proposal. The footnotes to financial statements do not change the figures presented on the face of the financial statements, but the footnotes are an integral part of any financial statement. The vast majority of the information necessary to conduct a meaningful review of a company's financial responsibility is contained in the footnotes to the financial statements. It is not possible to determine a company's financial responsibility from a review of financial statements without footnotes. In direct response to a request from its bank, Beber Silverstein had its balance sheet audited for the year 1989. However, it did not request its accountants to audit the statements of operations and cash flows for the year 1989 since the bank did not request it. Beber Silverstein provided the Department with all financial statements (except the footnotes) that were available on the company for the year 1989. The accountants' opinion for the 1989 statements clearly acknowledges that they were not engaged to audit the statements of operations and cash flows and, accordingly, no accountants' opinion was expressed on them. However the accountants' opinion for the 1989 statements does not explain why they were not engaged to audit the statements of operations and cash flows. Even though the accountants' opinion for Beber Silverstein's 1989 financial statement does not contain any opinion regarding the statements of operations and cash flows, the level of analysis actually performed by the accountants on the 1989 statements of operations and cash flows met the minimum standards for a review report. This was clarified in a letter dated May 1, 1991, which was submitted in conjunction with Beber Silverstein's prior proposal, but which letter was not included as part of Beber Silverstein's current proposal.2/ Beber Silverstein failed to include in its proposal the certification required by Section 5.9.3,F of the RFP to the effect that it did not have any audited financial statements for 1988 or 1990. The omission of the certificate was inadvertent. The absence of the certificate did not affect the price of Beber Silverstein's bid. Beber Silverstein supplied the Department with all financial statements (except for inadvertently omitted footnotes) that it had available. Although Beber Silverstein failed to provide a certificate, Beber Silverstein, in fact, did not have any audited financial statements (other than the 1989 balance sheet which was submitted). Findings regarding Benito Advertising, Inc. Benito Advertising, Inc., d/b/a Fahlgren Martin Benito, was founded in Tampa in 1954. It has offices in Tampa, Fort Lauderdale, Orlando, and Jacksonville. It employs approximately 70 people and its 1991 billings will be approximately $45 million. Benito Advertising, Inc., was acquired in 1989 by the Interpublic Group of Companies. Interpublic is one of the largest publicly-held advertising agency holding companies in the world with billings of $13 billion a year. Benito was subsequently assigned to Lintas:Worldwide, an operating unit of Interpublic. Benito and Lintas:Worldwide are wholly-owned subsidiaries of Interpublic. Attachment B to the RFP elicits the disclosure of ownership information (officers, directors, major shareholders, etc.) from vendors as required by Section 24.111, Florida Statutes. Question 7 thereof requires a corporate respondent to provide the names and addresses of its shareholders if the corporation is not publicly traded. A publicly traded corporation is required to state the names and addresses of those shareholders which own five percent or more of the corporate stock. The form which comprises Attachment B was never promulgated as a rule although it is intended for general use by the Lottery. Benito submitted five separate Disclosure Affidavits - one for Benito itself, one for Lintas:Worldwide, one for Interpublic Group, one for its Hispanic minority contractor, and one for its other minority partner. Benito responded "not applicable" to question 7-A on its affidavit as well as on the affidavit for Lintas:Worldwide on the bases that neither are publicly traded corporations because both are wholly-owned subsidiaries of Interpublic. The balance of the information on the five affidavits concerning officers, directors, shareholders, etc., was provided and is correct. Information concerning Benito's corporate status is alluded to throughout its proposal. More importantly, the corporate relationships as between Benito, Lintas, and Interpublic are explicitly stated in the Interpublic Annual Report which is a mandatory supplement to the proposal. Joan Schoubert, the Department accounting manager responsible for reviewing the annual reports and other financial statements, noted these corporate relationships in conjunction with her review and included the following statement on her reviewing document: Benito Advertising, Inc., d/b/a Fahlgren Martin Benito is a wholly - owned subsidiary of Lintas:Worldwide. Lintas:Worldwide is one of three operating subsidiaries of Interpublic Group of Companies, Inc. (guarantor of Respondents performance- bindings letter present) In the review of other proposals submitted in response to the subject RFP, the Department has overlooked an omission of information in response to a specific question if that information was otherwise available elsewhere in the proposal. An example of this is shown by the following notations on the Department's checklist concerning another proposal: Transmittal letter did not list subcontractors but they are revealed elsewhere, minor irregularity. Billings by media shown in percentages but can be interpreted in connection with Number 8. Paragraph 5.9.6,B,6 of the RFP (as amended by Addendum 3) requires the submission of a television commercial storyboard. Benito attempted to comply with this provision by submitting a so-called "video storyboard" which was recorded on a video cassette. This was submitted along with the balance of the proposal. Benito clearly stated in the text of the proposal that its "storyboard" was in video form. Benito's so-called "video storyboard" was in a format also referred to in the advertising business as a "stealamatic" or "ripamatic." Benito chose to utilize a "stealamatic" to convey its concept which, in essence, is nature photography with human voices inputed to the animals. This is very difficult to express in a two-dimensional format in that the concept does not have an actor carrying a story line. Furthermore, Benito knew that it was not going to be able to present the concept in person and thus could not explain it to the people who were to evaluate it. Given the reliance of the Benito message on animals, another medium would not have been as effective. Findings regarding Ogilvy & Mather Advertising At the time it submitted its proposal, Ogilvy Group, Inc., d/b/a Ogilvy & Mather, failed to submit all resumes and/or selection criteria required in Section 5.9.5,2 of the RFP. Further, it failed to submit a 30-second radio spot as required by Section 5.9.6,B,3 of the RFP and it failed to submit with its proposal the appropriate proposal bond required by Section 3.26 of the RFP. It further failed to comply with Section 3.8 of the RFP by failing to disclose the name of any employee, agent, lobbyist, previous employee of the Lottery, or other person who has received compensation of any kind or who has registered under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Lottery in connection with this procurement. Finally, Ogilvy Group, Inc., failed to complete question 7 of the Disclosure Affidavit required by Section 3.7 of the RFP. With regard to the failure of Ogilvy Group, Inc., to submit all resumes and/or selection criteria required by Section 5.9.5,2 of the RFP, its submission in this regard was missing 17 resumes and 6 descriptions of selection criteria. The 6 missing descriptions covered 13 positions. Three of the missing resumes were found to be located in other portions of the Ogilvy Group, Inc., proposal, but 14 resumes are nowhere to be found in the proposal. Without the information of the missing resumes and in the missing descriptions of selection criteria, it would be difficult, if not impossible, for the Department to perform an adequate analysis and comparison of the Ogilvy Group, Inc., proposal with other proposals. The Ogilvy Group, Inc., also failed to submit a 30-second radio spot. Instead it submitted two 60-second radio spots because of its belief that 30- second radio spots are not economically feasible. With regard to the late submission of Ogilvy Group's, Inc., proposal bond, its attorney and lobbyist, James J. Cooney, Esquire, delivered its bid package (which included the original and six copies of its technical proposal) to the offices of the Department of the Lottery sometime shortly after 1:00 p.m. on October 21, 1991. The original technical proposal and each copy of the technical proposal contained a photocopy of the Ogilvy Group, Inc., proposal bond, which was in the form of a certified check in the amount of $125,000.00. The original certified check was in Mr. Cooney's pocket. The Ogilvy Group, Inc., proposal materials (minus the original certified check, which remained in Mr. Cooney's pocket) were logged-in and officially received by the Department of the Lottery at 1:39 p.m. that afternoon. Mr. Cooney then physically accompanied the dolly on which the Ogilvy & Mather proposal materials had been placed, up the elevator and into the room designated for the bid opening. After Mr. Cooney had accompanied the proposal materials to the room where the bid opening was to occur, Mr. Cooney handed the $125,000.00 certified check to Russ Rothman. The delivery of the check to Mr. Rothman occurred shortly after 2:00 p.m., but shortly before any of the proposals were opened. The deadline for submitting bids was 2:00 p.m. Ogilvy Group, Inc., has retained the services of James J. Cooney, Esquire, as a registered lobbyist and attorney. Mr. Cooney is registered as a lobbyist for Ogilvy Group, Inc., pursuant to Section 112.3215, Florida Statutes. During the period between the issuance of the subject RFP and the submission of the subject proposals, Mr. Cooney on several occasions contacted functionaries of the Department of the Lottery, including the Issuing Officer, Mr. Rothman, in attempts to influence the Department's decision with respect to using previously submitted materials as part of the Ogilvy Group, Inc., proposal in the instant RFP. Such communications by Mr. Cooney were efforts to influence the actions of the Department of the Lottery in connection with the instant procurement. Officials of Ogilvy Group, Inc., were aware of Mr. Cooney's efforts in this regard. Ogilvy Group, Inc., is a corporation that does business under the fictitious name of Ogilvy & Mather. Ogilvy Group, Inc., was the proposing entity on its proposal. As proposing entity, it executed a Disclosure Affidavit (Attachment B to the RFP). Corporations submitting a Disclosure Affidavit were required to answer either Question 7a or 7b. The Ogilvy Group, Inc., did not provide any answer to either Question 7a or 7b. This was because the Chief Financial Officer of the Ogilvy Group, Inc., did not believe that Question 7a was applicable and did not believe that any answer to 7b was required because there was no one who owned five percent or more of the stock of WPP Group, plc, the parent company of which Ogilvy Group, Inc., is a wholly-owned subsidiary. Even though Ogilvy Group, Inc., failed to answer either Question 7a or 7b on the Disclosure Affidavit, information concerning its corporate status and its relationship to WPP Group, plc, is contained in other portions of its proposal. Joan Schoubert, the Department accounting manager responsible for reviewing the annual reports and other financial statements, was able to determine from the information in other portions of the proposal that Ogilvy Group, Inc., was a wholly-owned subsidiary of Ogilvy & Mather Worldwide, which was in turn a wholly-owned subsidiary of WPP Group, plc.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Lottery issue a final order in these consolidated cases concluding that, on the basis of the findings of fact and conclusions of law set forth above, all four of the proposals submitted by all four of the Petitioners are not responsive to RFP #92-005-LOT/TEN/P. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of January 1992. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January 1992.
Findings Of Fact The Petitioner won $2,500 in Florida Lottery prize. By Final Judgment of Dissolution of Marriage in the Thirteenth Judicial Circuit, Hillsborough County Family Law Division, Case Number 86-3999, dated June 20, 1986, the Petitioner was ordered to pay $100 weekly for the support of three minor children. By Order on Arrears in the Seventh Judicial Circuit, Putnam County, Case Number 91-6412-FD-57, dated November 7, 1996, the court found the following facts: Respondent was ordered to pay $100.00 per week for the support of his 3 children by the Circuit Court in Hillsborough County. Respondent never made a payment on this obligation. Arrears totaling $33,200.00 accrued until this Court's order in November 1992. This Court reduced the support obligation to $35.00 per week effective November 9, 1992, in view of two of the three children reaching the age of majority. Support was suspended effective July 1, 1996 Based on the calculation of unpaid support which was somewhat offset by Social Security benefits paid to the mother of the children, the court calculated the total arrears as $22,509. The Order on Arrears concludes that the "Department of Revenue may apply funds withheld from the [Petitioner's] lottery winnings in satisfaction" of the unpaid child support.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Office of Comptroller, Department of Banking and Finance, enter a Final Order transferring the Petitioner's lottery prize winnings to the Department of Revenue as partial satisfaction of the Petitioner's unpaid child support obligation. RECOMMENDED this 20th day of December, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of December, 1996. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Ken Hart General Counsel Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 John I. Chandler, Pro Se 6216 50th Street Tampa, Florida 33610 Josephine A. Schultz, Esquire Department of Banking and Finance The Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Chris Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030 Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
The Issue The issue in this case is whether Respondent should apply $5,000 won by Petitioner in the Florida Lottery toward child support and costs owed by Petitioner pursuant to Section 24.115(4), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact On November 7, 1997, the Circuit Court for the Seventh Judicial Circuit, in and for Volusia County, Florida (the "Circuit Court") entered a Final Judgement on Custody (the "Final Judgment"). The Circuit Court awarded custody of the minor child to Petitioner's ex-wife and ordered Petitioner to pay child support of $485.46 on the first day of each month. Petitioner failed to pay child support in accordance with the Final Judgement. Respondent brought an action to enforce the Final Judgement. On February 10, 1999, a Child Support Hearing Officer for Respondent entered a Report and Recommendation of Hearing Officer on Contempt (the "Contempt Report") determining that Petitioner owed an arrearage in the amount of $8,279.81. The Contempt Report required Petitioner to make timely payments of his monthly obligation for child support in the amount of $485.46 and to make a lump sum payment of $1,000 on or before March 12, 1999, to "purge" himself of contempt. An Income Deduction Order required Petitioner to pay child support of $485.46 each month to the clerk of the court. Petitioner filed a Notice of Exceptions to the Contempt Report and Income Deduction Order. On March 29, 1999, the Circuit Court conducted an emergency hearing to consider Petitioner's exceptions, to direct the Department of Revenue to Release Lottery Funds, and to consider Petitioner's motion to strike the paragraph in the Contempt Report requiring Petitioner to make a lump sum payment of $1,000. The Circuit Court granted Petitioner's Notice of Exceptions and struck the paragraph requiring Petitioner to pay $1,000 on or before March 12, 1999. The Circuit Court also ordered the release of Petitioner's lottery prize to his ex-wife to satisfy part of the arrearage Petitioner owes for child support. In relevant part, the Circuit Court stated: 2. That the [Petitioner'] lottery funds shall be released over to the [ex-wife] . . . . That the Department of Revenue is hereby ordered to release these funds directly to the [ex-wife] in an expedited manner as she is in dire need of said funds. On July 21, 1999, Respondent conducted an audit of the file and determined that Petitioner made some payments between February 10, 1999, and July 21, 1999. As of July 21, 1999, the arrearage of child support and costs owed by Petitioner was $7,395.09. Petitioner submitted no evidence that he has satisfied the arrearage in the amount of $7,395.09. Petitioner argues that he has appealed the order of the Circuit Court authorizing Respondent to disburse Petitioner's lottery prize directly to Petitioner's ex-wife and that DOAH is without jurisdiction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner owes an outstanding obligation for child support in the amount of $7,395.09, through July 21, 1999, and applying the lottery prize to reduce the outstanding obligation of $7,395.09. DONE AND ENTERED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 2nd day of September, 1999. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Chris Walker, Senior Attorney Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314 Ubangi Hajj-Mak Post Office Box 269 2208 Southwest Road Sanford, Florida 32772-0269 Sue M. Cobb, Interim Secretary Department of Lottery 250 Marriot Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue Petitioner, Carolyn A. Winston, alleges that Respondent, Department of the Lottery, has discriminated against her on account of her race in violation of Section 760.10, F.S. The issue for resolution is whether the violation occurred, and if so, what relief is appropriate.
Findings Of Fact Carolyn A. Winston, a black female, commenced her employment with the Florida Department of Lottery, a newly-created agency, on November 2, 1987. An active participant in Republican and minority organizations, Mrs. Winston was recruited by the agency after she submitted her resume for employment with the Martinez administration to Jeannie Austin, Chairperson of the Florida Republican Party. At the time that she was recruited, Ms. Winston was employed by AT&T and had approximately 9 1/2 years experience with AT&T as a manager/systems analyst. She had a BA degree in business administration/marketing from Rollins College in Winter Park, Florida. After an interview in Tallahassee, Carolyn Winston was hired by Michele Hayes, Director of Sales and Marketing, to be the Regional Manager for the Orlando Regional Office of the Lottery. Her salary, $41,300.00, was the maximum for the class. During the summer and fall of 1987, the Lottery was in the process of hiring approximately 700 employees. January 12, 1988 was targeted as the first date of sale of tickets and all sales staff were to be hired by November 16, 1987. Ms. Winston and the five other regional managers from offices in Orlando, Tallahassee, Jacksonville, St. Petersburg, Ft. Lauderdale, and Miami, reported directly to regional coordinators in the agency's Tallahassee headquarters. The general duties of the regional managers were to plan, organize and direct the sales activity of regional sales staff and district managers; to implement and interpret agency policies and procedures; and to protect the integrity of the Lottery. Two district managers reported to Carolyn Winston: Deborah Burkett (Orlando District) and Mike Steiber (Melbourne District). They had been hired prior to Ms. Winston and were engaged in hiring their sales staff in early November. In other regions, where district managers were not in place, the regional manager hired sales staff until the district managers could take over. There was no formal training established for regional or district managers when Ms. Winston was hired. She reported to work on her first day, November 2, 1987, in Tallahassee, where she met Dick Lepanen, the Regional Manager for Tallahassee, and Pam Allen, Regional Coordinator. She was given a limited briefing on her duties and a handbook describing the Lottery history and organization. Formal training for all regional and district managers, including Ms. Winston, was conducted in a three-day session in Tallahassee in November 10, 11 and 12, and again on November 30, 1987. The managers were given notebooks containing operational information and guidelines for performance of their duties. Ms. Winston was concerned about hiring qualified minorities for new positions with the Lottery and was able to assist her district directors, through the organizations with which she was connected, to locate applicants. In at least one instance Mike Steiber hired such an applicant after contacting Ms. Winston with his difficulty in recruiting through the local job services office. At the hearing Ms. Winston expressed pride at having the most qualified Lottery employees and more minorities than any other region. Despite the urgent need to train new employees and to meet the start up deadline, Ms. Winston's management concerns were related to form, rather than substance. She told the district managers that she wanted to conduct regional training and spent several hours of that training in Orlando explaining her background and management style and introducing staff and having them explain their backgrounds and styles. She then insisted that they all go to lunch together, with the result that substantive training was delayed until mid- afternoon. The sales representatives from the Melbourne office expressed concern to their manager, Dick Steiber, and requested additional training that evening back in their Melbourne office. On another occasion, in December 1987, Ms. Winston sent a memo to the district managers, without prior discussion, placing her own clerical assistant in charge of all clerical operations for the region and districts and stating that the regional manager would be conducting "skip level" meetings with subordinate district staff. On the afternoon before the first delivery of lottery tickets was due in the Melbourne district, Ms. Winston directed Mike Steiber to send his lead storekeeper to Orlando the next morning to observe how the Orlando tickets were laid out. He agreed this would be a good idea, but suggested that she come later as she needed to handle the ticket delivery. Ms. Winston insisted that she come as directed. Shortly thereafter, Mike Steiber requested a personal meeting with Ms. Winston to discuss his concerns. She gave him an 8:00 a.m. appointment in Orlando. Mr. Steiber travelled from Melbourne but Ms. Winston did not appear; she called her office about 30 minutes later to say that she would be unable to meet. The meeting was rescheduled for the next day and the same thing happened. After the third day and third unsuccessful trip to Orlando, the meeting was delayed indefinitely. In response to concerns expressed by Pam Allen, Regional Coordinator and Mrs. Winston's immediate supervisor, and by Deborah Burkett and Mike Steiber, Michelle Hayes asked Ms. Winston to come to Tallahassee to meet for a performance review. Feeling uncomfortable, Ms. Winston called Lt. Governor Bobby Brantley and told him she was being harassed. He replied that she should go to the meeting and consider it an opportunity to tell her story. Nonetheless, she sought legal counsel and brought an attorney with her to the meeting. Discussion of Ms. Winston's performance included failing to meet with the district managers to resolve problems at the regional level, presenting conflicting instructions, holding correspondence, lack of interest in learning agency operations, abbreviated work hours, and failing to leave forwarding phone numbers with support staff when absent during the workday. Ms. Winston considered the issues raised at the meeting to be lies generated by Deborah Burkett, and she responded to the meeting with a 6-page memorandum to Michele Hayes dated January 27, 1988. She also addressed a letter to the Lt. Governor the same day, enclosing her memorandum and stating, in part: * * * The lies can never be forgiven, but can be corrected. I suggest you remove the liar from my organization, District Manager Deborah Burkett, via termination not just for me; [sic] but for the good of the Orlando Region and encourage my Director to support the chain of command. * * * (Petitioner's Ex. #6) Copies were sent to Gov. Martinez, Jeannie Austin and Luther Smith, Esquire. Carolyn Winston viewed the meeting with her supervisor as an effort to get rid of her. She felt that both of her district managers were going over her head to get direction from Tallahassee or to report on her activity. Friction between Ms. Winston and Ms. Burkett severely affected morale in the office, and the employees felt uncomfortable at being required to take sides. Ms. Burkett had an aggressive management style, but was considered by her supervisors in Tallahassee to be very competent and knowledgeable about her job. Because she preceded Ms. Winston and had commenced hiring the staff on her own, some employees in the Orlando office perceived split loyalties. This was defined, in part, by race, as the black employees tended to "side" with Ms. Winston. Sometime in March 1988, Ms. Winston wrote to Secretary Paul requesting that Deborah Burkett be terminated for insubordination, stating that Ms. Burkett did not "respect the chain of command" and was unwilling to cooperate. (Respondent's Ex. #2) The request was denied, and Ms. Winston was offered a lateral transfer to a position in Tallahassee at no loss of pay. She declined. At Secretary Paul's request, Dick Lepanen, who was promoted to Lottery Sales and Distribution Manager, and the Lottery Personnel Director, Sandra Koon, visited the Orlando office on April 7, 1988 to counsel the two managers. Both Ms. Winston and Ms. Burkett appeared at the meeting with notebooks full of documents to support charges or rebuttals of each other's management problems. The meeting became a contest on each issue. Ms. Koon and Mr. Lepanen told the women that they needed to work together and that a unified management team concept had to be presented to the subordinate staff. The meeting ended on a positive note of resolution to make the Orlando region the best in the state. Ms. Koon's assessment of the problem was that both women were good managers and wanted to take control of the office. Still, friction continued, and a decision was made to transfer Deborah Burkett to a district manager position in Ft. Myers. Dick Lepanen telephoned Carolyn Winston to inform her of the decision on May 6, 1988, with a follow-up confidential memorandum. He asked her to not discuss the matter with anyone, to allow Ms. Burkett a chance to talk with her staff, and he said he had already informed Jody Spicola, the regional manager who would be Ms. Burkett's new supervisor. Jody Spicola called Ms. Winston on another matter the same day. Ms. Winston took the opportunity to discuss Ms. Burkett's work habits in unflattering and inflammatory terms, causing Mr. Spicola to call Mr. Lepanen to say that he was reconsidering his position on accepting Ms. Burkett in his region. Dick Lepanen called Ms. Winston and asked if she discussed Deborah Burkett with Jody Spicola. She denied it, and continued to do so until Sandra Koon, Dick Lepanen and Jody Spicola arrived in the Orlando office several days later to confront her directly. On May 16, 1988, Dick Lepanen issued Ms. Winston a written reprimand for insubordination, an infraction described in the Lottery personnel policies and procedures manual. Basis for the reprimand was her violation of the confidential information direction and her false denial. Ms. Winston refused to sign the reprimand, countering with a two-page memorandum dated June 2, 1988, stating that she was being discriminated against, that Deborah Burkett's character was no secret and that Ms. Burkett had lied for months. In the February 11-17, 1988, edition of the Daytona Times, a weekly newspaper addressing black readers, an article appeared with the headline, "Lottery Snubs Blacks". The article included a quote from Carolyn Winston, identified as regional director of the Lottery office, stating that "...minority participation in Lottery sales is 'not as good as it should be'", and urging that potential vendors write to the retailer application department at the Lottery office in Tallahassee. (Petitioner's Ex. #10) Secretary Paul addressed the regional managers and regional coordinators in a meeting on February 24, 1988, and made it clear that no one was to speak to the press about such matters except her and that further occurrences could result in termination. Ms. Winston apologized to Secretary Paul, through Michele Hayes, and gave a copy of Michele Hayes' brief written reminder on unauthorized press comments to her district managers with this handwritten notation: Please refer all press calls to Ed George. Any unauthorized comments to the press may well result in termination. Yes, she was serious. Will speak more on this at Wed's March 9th regional meeting. Carolyn (Respondent's Ex. #4) Ms. Winston took maternity leave from June through August 1988, but stayed in touch with the office. Mike Steiber was placed temporarily in her position, and later Jody Spicola was temporarily assigned to the Orlando region. Ms. Burkett's position was not filled, so the regional manager handled the Orlando district directly. On December 14, 1988, Carolyn Winston received her annual performance evaluation from Dick Lepanen. Based on his personal observation of her responses to him and how she handled issues that he referred to her, he evaluated her as "exceeds at least one standard", on a scale that includes "below standards", "achieves standards", "exceeds at least one standard", "exceeds most standards", and "sustained superior performance". He evaluated all of the managers in the same manner, that is, based on individual characteristics rather than on ability to meet sales quotas or on management style. Ms. Winston responded with a memorandum on her future goals and performance improvement plan which she asked to have appended to her evaluation. These goals included beginning her MBA, enrolling in workshops and seminars for advanced writers, and joining Toastmasters, as well as other general statements as to achieving "overall business objectives". (Respondent's Ex. #43) In December 1988, in a meeting in Tallahassee, Carolyn Winston reported to Sandra Koon and Dick Lepanen that there was discrimination in the Orlando regional office in the form of sexual harassment and anti-semitic remarks made about employees. The person allegedly primarily responsible for the discrimination was Ron Broadway, the warehouse manager. Ms. Winston was told that the behavior would not be tolerated by the department. She was given a video on sexual harassment to show at her normal weekly staff meeting and she was advised to have a frank discussion with the employees to let them know that sexual harassment was a serious concern. She was also counselled to meet individually with Mr. Broadway to assure that he understood that his comments and behavior would not be tolerated. Ms. Winston showed the video and followed up on the counselling, but the sequence of events is confused by a series of memoranda authored by Ms. Winston and referring to actions she took to investigate the complaints and to meet with the offending employee. Throughout those memoranda she refers to "anti-semitic and sexual harassment remarks", yet attached to her memorandum dated December 20, 1988, to Dick Lepanen is a 3-page outline of statements made by employees, identified by initials as "A" through "F", who alleged hearing Ron Broadway make explicit and highly offensive racial remarks at work, at softball practice and while setting up a lottery display at a civic event. These remarks included the term, "nigger", and derogatory comments about a black employee's baby. (Respondent's Ex. #44) Two memoranda from Carolyn Winston to Ron Broadway dated December 20, 1988, refer to an oral counselling session on December 12, 1988, regarding "anti- semitic and sexual harassment remarks". (Respondent's Ex. #5 and #6) Curiously, a memo dated January 31, 1989, from Carolyn Winston to Dick Lepanen, states: On January 30, 1989, I discussed and issued a copy of the December 20, 1988 memorandum entitled "Anti-Semitic and Sexual Harassment Remarks" to the employee Ron Broadway. Hopefully the matter has been resolved. Thank you for your assistance. (Respondent's Ex. #7) A copy was sent to Sandra Koon. At some point Ms. Koon and Mr. Lepanen determined that the charges involved racial comments, not anti-semitic comments or sexual harassment. They interviewed employees in the Orlando office and Ron Broadway. Something regarding the issue was placed in Mr. Broadway's personnel file, although not the memoranda Ms. Winston had prepared, and he was transferred to the Gainesville office in May 1989. Ms. Winston filed her first complaint of discrimination in May 1989, alleging that she was discriminated against in retaliation for reporting a white manager's "ethnic and sexual" remarks. Also in May 1989, Sandra Koon was involved in investigatory allegations made by three employees who had filed EEOC suits against the Department when their work stations were moved to the back of the office. The Tallahassee office had received complaints in writing, and by telephone, of rude treatment of Lottery participants by the Orlando regional office, by employees sitting near the public counter and answering the telephone. Dick Lepanen directed these employees be moved from public contact after Ms. Winston was given an opportunity to resolve the problem with no success. Her assistant had investigated the complaints, but they continued. These EEOC complaints were settled in July 1989, with a fact-finding conference at which the Department agreed that nothing would be placed in the employee's files, they would be considered for promotional opportunities and they would receive training in dealing with customers and other members of the public. After the initial start-up of the Lottery in early 1988, employees began to learn their jobs and to perform more efficiently. By spring 1989, after the Department's administrative operating expenses were reduced by the Legislature, Secretary Paul decided to streamline the agency, particularly as it related to sales. Part of the decision involved reducing the number of regions from six to three, creating a northern, central and southern region. The decision as to which of the six regional managers would be retained was based first on length of service in the class, and second on overall performance appraisals. Two regional managers were hired in 1988 and they were clearly eliminated. One regional manager, Jody Spicola, was hired October 21, 1987, and he was clearly retained. The remaining three managers, Carolyn Winston, Carlos Ribero and Edith Manning, were all hired effective November 2, 1987. Both Edith Manning and Carlos Ribero had annual performance appraisals in December 1988 of "exceeds most standards", one step above that of Ms. Winston. In the reorganization, therefore, Ms. Winston was demoted to district manager of the Orlando office, reporting to Jody Spicola in the Tampa regional office. Because her salary exceeded the maximum for the new class, she received a reduction in pay of approximately $3,000.00. Even with the reduction, her salary exceeded that of the two other regional managers who were demoted, as they had been hired at a lower level. Edith Manning, a regional manager who was retained, had been hired at $28,000.00. In the July 13-19, 1989 issue of the Daytona Times, Ms. Winston's photograph appeared on the front page with an article and headline, "Black Lottery Manager Claims Racial Bias". The article outlined Ms. Winston's allegations against the department with regard to herself, personally, but also included this statement: * * * One major issue raised by Winston, supported by other Blacks and minorities who play the lottery, had to do with the disproportionate ratio of Blacks winning the lottery when compared to the high rate of participation by Blacks, Hispanics and other minorities. * * * (Respondent's Ex. #9) On July 18, 19 and 20, 1989, a three-part interview with Ms. Winston aired on Channel 6 Television in Orlando, on the evening news. The interview contained several statements that a person's color was the most important consideration of the Lottery and that the agency was racially biased. On July 24, 1989, Ms. Winston was placed on administrative leave with pay in order to remove her from the office while the department assessed the impact of the publicity. She filed a second complaint with the Human Relations Commission. Additional newspaper articles appeared in the Daytona Times and in the Orlando Sentinel with the racial bias allegations and the fact that Ms. Winston was placed on leave. In a letter dated September 1, 1989, Michele Hayes notified Carolyn Winston that she was terminated effective 5:00 p.m. the same date, for the following reasons: Disruptive behavior displayed during the course of your employment which resulted in low employee morale and had an adverse impact on the operations of the Orlando office; Unsatisfactory work performance as a leader and manager of the Florida Lottery; and Disloyalty in general to the Florida Lottery and executive level management. (Respondent's Ex. #31) Ms. Winston filed her third complaint with the Human Relations Commission after her termination. Art Mobley, a black male was hired to replace Ms. Winston on December 1, 1989. He had originally been hired by Deborah Burkett, in November 1987, as a sales representative in the Orlando office. After several months he was promoted to an on-line coordinator in the on-line games unit in Tallahassee. When Ms. Winston's position was advertised he successfully applied and moved back to Orlando.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Carolyn Winston's petitions in these three consolidated cases be dismissed. DONE AND RECOMMENDED this 23rd day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Neither party complied with the requirement of Section 22I-6.031(3), F.A.C., that proposed findings of fact be supported by citations to the record. This has made the task of accepting or rejecting proposed findings virtually impossible. Petitioner's Proposed Findings Adopted in paragraphs 1 and 3. Adopted in part in paragraph 5, otherwise rejected as unsupported by competent evidence. 3 - 5. Adopted in paragraph 5. Adopted in paragraph 6. Rejected as irrelevant or contrary to the weight of evidence, except for reference to the racial epithet, which is adopted in summary in paragraph 22. 8 - 10. Rejected as irrelevant or contrary to the weight of evidence. Adopted in part in paragraph 11; the "insubordination" conclusion is unsupported by the record. Rejected as statements of Ms. Winston's position rather than findings of fact. That she felt discrimination does not prove the fact of discrimination. 13 - 15. Rejected as summary of testimony rather than findings of fact. 16 - 17. Adopted in paragraph 17. 18 - 19. Adopted in paragraph 20, except for the conclusion that the process deviated from "formal evaluation standards." 20. Rejected as contrary to the weight of evidence. 21 - 22. Adopted in substance in paragraphs 21 and 22. 23 - 28. Rejected as summary of testimony rather than findings of fact. 29 - 36. Rejected as contrary to the evidence. 37. Rejected as irrelevant. 38 - 40. Rejected as contrary to the evidence. Respondent's Proposed Findings Adopted in paragraphs 1 and 5. Adopted in paragraphs 5 and 26. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraphs 8 - 10. Adopted in paragraphs 11 and 12. Adopted in paragraph 18. 10 - 11. Adopted in paragraphs 13 and 15. Adopted in paragraphs 16-17. Rejected as unnecessary. Adopted in substance in paragraph 20. Adopted in paragraph 21. Adopted in paragraphs 22 and 23, except that the memorandum was removed from Mr. Broadway's file and was replaced by another. Adopted in part in paragraph 23; otherwise rejected as immaterial. Adopted in substance in paragraph 24. 19 - 20. Adopted in part in paragraph 23; otherwise rejected as unnecessary. Adopted in summary in paragraph 24. [no numbered paragraph 22.] 23. Adopted in paragraphs 25 and 26. 24. Rejected as unnecessary. 25 - 26. Adopted in part in paragraph 27. 27. Adopted in paragraph 28. 28. Adopted in part in paragraph 29. 29. Rejected as unnecessary. 30. Adopted in paragraph 31. 31 - 32. Adopted in paragraphs 28 and 29. 33 - 40. Rejected as argument, or unnecessary. COPIES FURNISHED: Anthony Gomes, Esquire Authorized Representative c/o Carolyn A. Winston 515 Polaris Loop #101 Casselberry, FL 32707 Louisa H. Warren, Esquire Senior Attorney Florida Lottery Capitol Complex Tallahassee, FL 32399-4011 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, FL 32301 General Counsel Department of Lottery 250 Marriot Drive Tallahassee, FL 32301 Dana Baird, General Counsel Fla. Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570
