The Issue The matter for consideration in this case concerns Petitioner's challenge to the Respondent, Department of Health and Rehabilitative Services', award of a contract for services to provide treatment of youth in the Juvenile Alternative Services Projects (JASP) for Hillsborough and Manatee Counties. In particular, Petitioner contends that it did not receive due and fair consideration in accord with the criteria established by law. Petitioner stipulated, during the hearing, that it was not challenging the sufficiency of the Request for Proposal (RFP) pursuant to which bids were submitted nor the sufficiency or propriety of the criteria contained within the RFP. WITNESSES AND EXHIBITS Petitioner presented as witnesses Dr. Peter Parrado, Executive Director of Juvenile Services Program, Inc.; Mr. Jack F. Wood, Program Supervisor, Children, Youth & Families (HRS); Mr. Patrick Keefe, District VI Intake Supervisor for HRS; Judge James P. Calhoun, Circuit Judge for the Thirteenth Judicial Circuit; Mr. John Benito, Assistant Public Defender for the Thirteenth Judicial Circuit; and Mr. Andrew Alexandre, District VI Intake Supervisor for Respondent (HRS). By stipulation of counsel, the direct testimony of Mr. Benito and Mr. Alexandre were presented by deposition and counsel for Respondent had the opportunity to cross examine those two (2) witnesses during the hearing. Respondent called as its witnesses Mr. Larry Lumpee, an employee of Respondent and Mr. William F. Bowman, Director of Bay Area Youth Services, Inc. The parties presented twelve (12) joint exhibits. Joint Exhibit I was the Request for Proposal for the Manatee County JASP and Joint Exhibit 2 was the Request for Proposal for the Hillsborough County JASP. Joint Composite Exhibits 3 and 4 were the proposals or bids of Bay Area Youth Services, Inc., for Manatee and Hillsborough Counties respectively. Joint Composite Exhibit 5 was the proposal or bid of Boy's Club of Manatee County, Inc., for the Manatee County JASP. Joint Composite Exhibits 6' and 7 were the proposals or bids of Juvenile Services Program, Inc., for Manatee County and Hillsborough County respectively. Joint Composite Exhibit 8 was the rating sheets of the selection committee for Hillsborough County and Joint Composite Exhibit 9 was the rating sheets for the selection committee for Manatee County. Joint Exhibits 10, 11 and 12 were the letters of notification of action dated May 28, 1982, from the Respondent to Boy's Club of Manatee County, Inc., Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., respectively. Those exhibits were admitted. Petitioner also offered the depositions of Mr. John Benito and Mr. Andrew Alexandre and with agreement of counsel for Respondent, these were admitted as Petitioner's Exhibits 1 and 2. Petitioner had marked for identification its letter of protest dated June 10, 1982. This was not admitted as an exhibit. Respondent offered no exhibits other than the Joint Exhibits listed above. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The Department of Health and Rehabilitative Services has, since 1979, operated the Juvenile Alternative Services Project. The program provides diversion and treatment for first-time less serious juvenile offenders prior to an adjudication of delinquency by the courts. The JASP program came into existence in 1979, through a pilot program in HRS Districts V, VI and VII. The pilot program in District VI was operated by Youth Program Services, Inc., based in Orlando, Florida. The JASP pilot program in District V was operated by Juvenile Services Program, Inc., the Petitioner in this case. The contract for District VI, which consists of Manatee and Hillsborough Counties, was re-bid annually. The Requests for Proposal used in the years 1980, 1981, and 1982, except for very minor changes, were virtually identical. The contracts which are the subject of this case were let for bid pursuant to two (2) Requests for Proposals (hereafter RFP) dated April 23, 1982. (Joint Exhibits 1 and 2) These two (2) RFPs advertised for two (2) separate contracts for the Manatee County JASP and Hillsborough County JASP. Proposals under both RFPs were required to be submitted no later than May 14, 1982, at 5:00 P.M. The Boys' Clubs of Manatee County, Inc.; Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., submitted timely proposals for the Manatee County program. (Joint Exhibits 3, 5 and 6) Timely proposals for the Hillsborough County program were received from Juvenile Services Program, Inc., and Bay Area Youth Services, Inc. (Joint Exhibits 4 and 7) The proposals were evaluated by selection committees for each county. Members of the selection committee for Hillsborough County were Judge James Calhoun, Marcia Leonard Bailey, John Benito, Jack Wood, Patricia Moran, Andrew Alexandre and Patrick Keefe. These persons included a Circuit Judge, Assistant State Attorney, Assistant Public Defender, a citizen at large, and three (3) HRS employees. A similar committee performed the evaluation for Manatee County. In addition to reviewing the written proposals, the committees heard oral presentations from those parties which had submitted written proposals. Following the oral presentations, the committee members rated the various proposals by filling out rating sheets containing the various criteria contained in the RFP and used by the selection committee in arriving at a recommendation. (Joint Exhibits 8 and 9) The criteria were: A programmatic expertise; Prior experience--personnel history; Organization abilities; Qualifications of personnel--abilities to hire qualified personnel; Budget in cost effectiveness program; and Overall adequacy of personnel. The committee for Hillsborough County rated the Petitioner and Bay Area Youth Services, Inc., very closely, with Bay Area Youth Services, Inc., receiving 677 total points and Juvenile Services Program, Inc., receiving 668 points. Following their evaluations, the committees recommended Bay Area Youth Services, Inc., as the entity to provide JASP programs for both Hillsborough and Manatee Counties. Thereafter, Juvenile Services Program, Inc., timely and properly filed its protests and requested a formal hearing pursuant to Florida Statutes, Section 120.57(1). Both Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., were qualified to perform the services requested by the RFPs. No evidence was presented relating to the selection process in Manatee County and there was no evidence that the Petitioner did not receive a full, fair, and proper evaluation of all criteria in the RFP for the Manatee County program. All five (5) committee members from the Hillsborough County selection committee who were called as witnesses testified that both the Petitioner and Bay Area Youth Services, Inc., were well qualified. The major contention of the Petitioner focused on the fact that Bay Area Youth Services, Inc., was a new corporation and would not be able to perform the administrative and financial functions of the JASP programs as well as Juvenile Services Program, Inc., which had been in existence since 1976. There was no evidence presented which showed that the selection committees failed to evaluate each and every criterion established by the RFP. This was borne out by the rating sheets as well as the five (5) committee members called as witnesses by Petitioner. Dr. Peter Parrado, Executive Director of Juvenile Services Program, Inc., also testified about the inquiry by the committee into the various criteria during the oral presentations. Both the Petitioner and Bay Area Youth Services were evaluated by the committee in all criteria areas. The committee specifically inquired into the fact that Bay Area was a new organization, incorporated in April, 1982, and was satisfied that that would not interfere with the proper performance of the services requested by the RFP. Mr. William F. Bowman, Director of Bay Area Youth Services, Inc., and one (1) of the members of its Board of Directors appeared before the selection committee. The entire existing District VI staff of Youth Programs, Inc., was to continue in place with Bay Area Youth Services. Both Dr. Parrado and Mr. Bowman had been involved in the JASP program since its inception in 1979. Dr. Parrado was executive director of the Petitioner which had had the JASP contract for District V since the pilot program in 1979. Mr. Bowman, as a former employee of Youth Program Services, Inc., was the program director for the JASP program in District VI and had performed that function since the pilot program in 1979. Both men were well qualified to supervise the JASP programs for District VI. There was a specific requirement that the providers submitting proposals be able to have the projects operational by July 1, 1982. The committee was concerned with the ability of Juvenile Services Program, Inc., to step inland take over a program with which it was not familiar. The JASP program in District VI operated differently than the program in District V where Juvenile Services Program was already operating JASP. Mr. Bowman and the staff of Bay Area Youth Services were the same staff that had previously operated the JASP program in District VI for Youth Programs, Inc. Mr. Bowman and his staff were thoroughly familiar with the operation and procedures of the JASP program in District VI. The Committee was also concerned with continuity of the existing JASP operations in District VI and Dr. Parrado had not given assurance as to what, if any, of the existing staff would be retained if Juvenile Services Program, Inc., was awarded the contract. Bay Area Youth Services already had its staff and physical operation in place and would be less disruptive of the program'5 continuity if awarded the contract. The key individuals in the supervision and operation of JASP in District VI by the two (2) bidders would have been Dr. Parrado and Mr. Bowman. JASP in District VI would be the only program operated by Bay Area Youth Services and Mr. Bowman would be giving one hundred percent (100 percent) of his time to that program. On the other hand, Dr. Parrado's organization would have been operating JASP in three (3) other districts as well as several other youth programs in other counties. The budget submitted by Juvenile Services Program reflected that Dr. Parrado would spend fifteen percent (15 percent) of his time supervising the District VI JASP. Dr. Parrado testified that he would give as much time to District VI required but gave the committee no firm estimate as to how much of his time he would be able to be personally involved in District VI. The witnesses rated the performance of Mr. Bowman and his staff as excellent for the previous years they had operated JASP in District VI. Some administrative problems had developed while Youth Programs, Inc., provided JASP services in District VI. These were in the nature of late payrolls and delays in paying bills. The problems emanated from the Orlando office and were not attributable to Mr. Bowman and the staff in District VI. Because of the problems which had occurred with the large organization of Youth Programs, Inc., the committee was concerned that the same types of problems might arise with Juvenile Services Program, Inc., which is also a large organization. To aid in handling the administrative details of JASP, Bay Area Youth Services had retained an outside firm to do the payroll and tax and other payroll-related functions. A local accounting firm had been retained to monitor and take care of accounting and bookkeeping functions. The committee was satisfied that Mr. Bowman's organization would be able to adequately handle the administrative details of JASP in District VI. Although much of the administrative and personnel matters under Youth Programs, Inc., were handled out of the Orlando Central Office, Mr. Bowman had for three (3) years been responsible for all hiring, firing, and supervision of personnel in the District VI JASP. He also did all local buying of supplies and related items. He also was responsible for locating and obtaining office space and equipment. The director of the program in District VI performs a liaison function between the provider and those entities using the services such as the State Attorney's office, Public Defender's office, and the Circuit Judges responsible for juvenile matters. Mr. Bowman had developed good rapport and credibility with each of these entities as well as HRS counselors in District VI and had done an excellent job in selling the JASP program to these agencies.
Findings Of Fact A. Introduction Briefly this case concerns itself with the measures taken by Respondent to effectuate its suspension of petitioner without pay during July 29, 1975, 2/ through August 22. The suspension letter dated August 8, advises the Petitioner that the disciplinary action taken against him was based on information furnished him in a letter dated July 29, 1975. (See joint exhibit #1 received and made a part hereof by reference). In essence the July 29th letter indicated that based on the results of a meeting held in Hanni's office numerous incidents involving alleged willful violations of agency rules, regulations and policies were reviewed and that while Petitioner was aware of such rules, regulations and policies, because of philosophical differences, he circumvented them. Present at that meeting on Respondent's behalf were William Clark, Pat DeNoyer, Joe Davis, Grace Scarberry and Petitioner. The Letter advised that although he received a satisfactory performance evaluation effective February 23, 1975, during that evaluation period he engaged in numerous violations of agency rules, regulations and policies. Specifically, the letter referred to an incident wherein he altered a form, DYS143, which changed the recommendation for issuance of a petition to a recommendation of no petition. That alteration, as the letter reads, was made after the supervisor had initially approved the original recommendation for issuance of a petition. This, as the letter alleges, was without the supervisor's attention and/or recommendation. The July 29th letter also indicates other instances in which pre-dispositional reports were not completed prior to court hearings on approximately three occasions and that he was issued an oral reprimand for using profanity in speaking to a neighbor who was known to Petitioner as a former DYS client on July 14; that he violated DYS rules by authorizing the release of a child from detention in violation of a judge's "hold-in-custody" order and against the judge's express wishes and instructions; that he did not notify a court psychologist of the change of a hearing date from July 16 to July 10 even though he had full knowledge that the psychologist had done a court ordered evaluation which was standard procedure which resulted in violation of State Department of Health and Rehabilitative Services, Division of Youth Services Employee Rules of Conduct and Guidelines for disciplinary action, offense no. 24, in willful violation of rules and regulations of policy. For engaging in the conduct as alleged, Petitioner was dismissed from his employment effective 5:00 P.M., July 28, 1975. During a telephone conversation on August 8, Petitioner was advised by Hanni that his supervisors had reviewed the circumstances surrounding his termination on July 28, and based on further review, it was felt that the disciplinary action taken against him resulting in termination should be reduced to a suspension without pay. Thus the initial termination was reduced to a suspension effective July 29. The Petitioner, Warren F. Shaw, holds a B.S. Degree from Florida Atlantic University and was initially employed by Respondent in June, 1973. He received permanent status in August, 1974, and was placed in the intake unit. He was initially hired by T. Waldren and was placed in Grace Scarberry's unit after she (Scarberry) had been a supervisor for approximately five months. During the time that he was employed in Mrs. Scarberry's unit, he submitted two transfer requests. When Petitioner returned to work on August 22, he was evaluated by Mrs. Scarberry on August 26 and at that time he was placed on conditional status. On that date, Mrs. Scarberry explained to Mr. Shaw the reasons why his performance was rated conditional (allegedly due to his inclination to circumvent established procedures and policies in critical areas). The letter of explanation indicated that during the early portion of his rating, he performed within satisfactory limits, however, during the latter period there was a general decline in his overall performance. It went on to state that he (Shaw) found it difficult to meet acceptable standards of performance in the areas of dependability, relationships with people, quality of work and adequate utilization of his job knowledge. It cited one occasion when he failed to place vital social information in a PDR which was allegedly "known to him" and pointed out to his supervisor resulting in an unnecessary court continuance and detention for a child. Further it cited an incident wherein another child was released from detention in violation of a court order. Also mentioned were his critical attitude regarding his relationship with people including the clerical and professional staff and clients which had been the subject of an earlier oral reprimand. See Appellant's Exhibit #2, received and made a part hereof by reference. Grace Scarberry, a camp specialist of District 10, HRS, since June 30, 1976, was initially hired in September, 1972 as a youth counselor II. Sometime during late March, 1974,she was made supervisor for youth counselors and was assigned to supervise the Petitioner sometime during September, 1974. Essentially intake counselors receive referral applications from policemen by juvenile offenders. During June 1975, the Division of Youth Services established a unit to handle juvenile matters at the Broward County Courthouse. A PDR is a summary of arrests records, impact forces, family background and generally data relative to how a child fits into his family. It is used to assist the presiding judge on the disposition of juvenile offenders. Mrs. Scarberry testified that standard rules and regulations require counselors to submit PDR's prior to the court hearing absent extraordinary circumstances. Mrs. Scarberry related the incident regarding the alleged alteration of an order by the Petitioner wherein he recommended that a petition be filed in a case which she approved and that Petitioner thereafter changed the recommendation. When the change was discovered, she counseled Petitioner. She expressed her knowledge and familiarity with the disciplinary procedures and testified that on July 22 she evaluated the Petitioner as being a satisfactory employee. She also related other instances wherein PDR's were not filed prior to the hearing and circumstances wherein social files contained inaccurate and incomplete material. She also indicated the problem regarding the lateness in which the Petitioner submitted files which normally should be completed approximately two to three days after a judge's order is entered and received. For this alleged infraction, Petitioner was asked to write a memo explaining his lateness in filing reports and in that memo he replied that such was occasioned by his heavy case load and other pressing matters. Scarberry also related the incident wherein Petitioner allegedly violated a judge's holding order by releasing a child who was ordered to be retained until he was transferred to a drug program. She testified that Petitioner explained that the judge had ordered the youth released on the date in which the release occurred. She requested that Petitioner file a memo explaining his actions regarding the release whereupon she explained to him that although he violated the rules, no disciplinary action would be taken. Frank William Schueler, a police information officer for Ft. Lauderdale, testified that his son is the subject of the Petitioner's alleged violation of the judge's "hole-in-custody" order. He was somewhat vague in his testimony but generally indicated that he was of the opinion that the Petitioner followed the judge's order in releasing his son. H. Squier Hanni, Regional Director for the Division of Youth Services during times material, testified that he terminated Petitioner on July 29, 1975. He testified that on or about July 16, he along with Petitioner, Mrs. Scarberry, DeNoyer and others, during a meeting determined the basis for the charges. At that meeting, Mrs. Scarberry stated that the Petitioner circumvented rules, policies and procedures whereupon he reviewed the reports of his work in certain cases. A further meeting was held on July 28 and at that meeting, Petitioner, according to him, wanted the matter ended. Accordingly, the allegations were read to him and he responded that they were ridiculous. When the allegations were read to him, Petitioner indicated that he followed the rules and regulations and in certain instances wherein there was a departure, he should be compared to Kennedy and other employees who had not consistently followed procedures as they were "standardized". Thereafter, Petitioner was excused from the room and the parties jointly agreed that he was guilty as alleged and various options were discussed among them. One option discussed was to have Petitioner placed in the conditional status for approximately 30 to 45 days. That option was not utilized and they decided to terminate him. On or about August 8 the dismissal was substituted for a suspension based on consultation with Art Adams, Personnel Director for the Division of Youth Services, who persisted that the action warranted suspension rather than termination. He explained to Hanni that attitude should not be an operative factor in a disciplinary action. On cross examination, he testified that he was aware of no other employee who had been reprimanded for the conduct allegedly engaged in by the Petitioner and that he did not point out to Petitioner when specifically requested by him, the rules and regulations which he allegedly violated. He admitted that philosophical differences without question played a factor in his reasons for dismissing the Petitioner. He further admitted that Petitioner requested to be transferred to another unit and he refused. Joe Davis, Staff Developmental Trainer-Consultant since April 15 testified that he was aware of the Petitioner's alleged violation of a hold-in- custory order which was stated as one of the reasons for his separation. He spoke to the judge who indicated that the order was predated to prevent Petitioner from "getting into trouble". Pat DeNoyer, a Program Specialist, testified that she prepared a list of all employees who were to attend training meetings. Petitioner was not included on the list to attend training meetings in her opinion due to a clerical mistake. (See Exhibit A, received and made a part hereof by reference). She related the problems regarding social file discrepancies and admitted that no corrective action was taken to correct this problem and further that there were discrepancies in almost all of the files that were reviewed. She failed to recall having voiced this to Petitioner or indicating that he should institute some corrective action to see that the discrepancies did not continuously occur in social files. She admits to having received two transfer requests from Petitioner and was aware of his special evaluation in which he was rated above satisfactory on June 17, 1976. She expressed the opinion that Tom Waldren is an experienced supervisor. Jean Tillman, a District Intake Specialist, also related the problems regarding social file discrepancies. She recalled that verbal requests for corrective actions regarding the social file discrepancies were made by Mr. W. H. Clark. She indicated that the social files were considered late if they were not presented by 8:00 A.M. on the day prior to the court hearing. Several employees testified, including James Robinson, Kate Woodby, and Betty A. Conrad who was employed through January 31, 1976 as an employee in the VISTA program which was then connected with DYS. She testified that Petitioner went over and above his call of duty by assisting her and performing special counselling for the VISTA program. Tom Waldren, a youth counselor supervisor and the person who originally hired the Petitioner, testified that he rated Petitioner above satisfactory. He also indicated that it was not uncommon for interchanges to occur verbally at times when a social file was not timely presented. Ronald Nelson, a youth counselor since approximately April of 1972, testified that he has known Petitioner for approximately three years. He has worked along with Petitioner on numerous felony cases and indicated that he and Petitioner have been criticized for handling judicial cases. He worked very closely with the Petitioner since July of 1975 and would rate his work performance above satisfactory. Shaw testified that he submitted the two transfer requests because of the philosophical differences that he and Mrs. Scarberry had. He related his being placed on conditional status when he returned to work on August 26, 1975, and at that time he requested that he be transferred. He indicated that on or about July 28 the problem of PDR's was raised for the first time and he admits that he had been orally spoken to about the lateness in which he filed PDR's. In explaining his conduct surrounding the change in the recommendation, he indicated that he first made the recommendation to Scarberry that a recommendation be filed in the case. He testified that he was asked to go see the then assistant state attorney, John King, who was not in at the time. Upon reflection of the matter, he changed his recommendation and the matter was brought to King's attention who did not file a petition. He testified that this change in the recommendation centered around the fact that is was a sex case involving two neighbors who were, in his opinion, being vindictive. He spoke to Scarberry about the change sometime in January. He indicated that he was baffled by Scarberry's continuous indication that while he was being orally reprimanded, the reprimands continuously turned up in his personnel file. Regarding his alleged failure to have a court psychologist present, he explained that court psychologists were not needed in all cases and that he was unaware of any rule that required the presence of a court psychologist in the cases such as the particular case in question. As regards the alleged violation of the judge's "hold-in-custody" order, Petitioner testified that when he spoke to the judge, he concurred with his disposition of this matter. Specifically, he testified that he called the drug program to see if the subject juvenile could be expedited into the drug program. Upon learning that the juvenile could be expedited into the drug program, he released him to the father, and he was then placed in a "hold- release" situation. During his exit interview, Petitioner testified that Hanni related the problems which essentially were his dissatisfaction with the philosophical differences existing between he and Scarberry. He talked to Art Adams the day prior to his reinstatement and Adams indicated to him that he initially felt that Hanni was correct but upon reconsideration, determined that the action taken was a bit harsh for the alleged infractions of the various rules, regulations and policies. Petitioner was unaware of any rule which required that PDR's be in writing prior to submission of the case to court for hearing. He was requested to, and prepared a document explaining his actions surrounding the alleged violation of the judge's "hold-in-custody" order. In explaining his alleged withholding of cases, Petitioner indicated that for the majority of his cases, he submitted them to the supervisor within two or three days following the close of the hearing. He testified that his case files did not always include rules of probation due to other pressing reasons, for example other cases which were in court for final hearing. As regards the reprimand that he received for using profanity, he denied that he made any profane statements in the presence of a female. He testified that it was in his opinion, up to the counselor's discretion to see what manner or means a youth should be transported to a detention center. Finally he testified that the judge authorized the release to the juvenile's father. In resolving the issue posed here, the undersigned has examined the documentary and other evidence and viewed such in light of the Respondent's alleged reasons cited for prompting the Petitioner's suspension. In so doing, I am forced to conclude that the suspension was caused, at least in part, based on Petitioner's philosophical differences with his supervisor, Grace L. Scarberry. H. Squier Hanni, the Deputy District Administrator who ordered the suspension admitted as much in his testimony. In fact he testified that the philosophical differences existing between Petitioner and Scarberry played a major part in his decision to discharge Petitioner. Thereafter on the following day, Hanni consulted with HRS Personnel Director, Art Adams, who correctly pointed out that philosophical differences should not play any part in a decision to discharge an employee. When Hanni was persuaded to reduce the disciplinary action to a suspension, the undersigned is of the opinion that the appropriate corrective action was not taken for the following reasons. By his own admission, Hanni indicated that Petitioner's philosophical differences unquestionably played a factor in his decision to discharge Petitioner. The evidence also reveals that the alleged violations of rules, policies etc., which formed the basis of the decision to terminate Petitioner were the same type conduct which other employees engaged in without any disciplinary action being taken against them for such conduct. This is clearly disparate treatment and lends support for a conclusion that the cited reasons for the discharge were pretextual and the real reason was the philosophical differences. Even if it was less clear that other employees had engaged in the kind of conduct which led to Petitioner's suspension without any disciplinary steps taken, the suspension is still suspect in view of Hanni's forthright testimony that the philosophical differences played a major part in his decision which ultimately led to Petitioner's suspension. Further support for this conclusion rests in an examination of the remarks contained in Scarberry's letter to Petitioner indicating that while he had been performing satisfactorily, his critical remarks were part of the reasons that she evaluated his performance as conditional (See Appellant's Exhibit #2). This evaluation was made immediately following Petitioner's return to work and after the suspension. At that time, Petitioner again requested a transfer which was denied. He was finally permitted to transfer in mid- September, 1975, and he was evaluated above satisfactory in November 1975, by his supervisor, Tom V. Waldren. Based on the above and the entire record in this case, I find that Petitioner was suspended at least in part due to his philosophical differences with supervisor Grace L. Scarberry. Inasmuch as the suspension rested in part on this fact, I therefore conclude that the suspension was improper and should have been retracted. I shall so recommend. 3/
Recommendation Based on the above findings of fact and conclusions of law, I recommend that Respondent make whole its employee, Warren Frederick Shaw, for any loss in earnings plus reasonable attorney fees and costs as provided in Chapter 110.061(3), F.S., that he suffered during the above referenced period in which he was suspended. I further recommend that his personnel records be expunged of any material relative to the suspension. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1976.
Findings Of Fact Fischer is a child under commitment to the Department of Health and Rehabilitative Service who on May 24, 1978, was granted the privilege of transferring to a community placement under the direct supervision and authority of the Bureau of Fields Services, Division of Youth Services. The transfer was the subject of a furlough agreement entered into by Fischer with HRS on the same date. On May 31, 1978, Fischer was furloughed from the Alyce D. McPherson School, Ocala, Florida, and released to the custody of Mr. Rolf Fischer, the brother of Fischer's natural father who had raised her since she was sixteen (16) months old. On June 6, 1978, Fischer was placed on a contract with her counselor, Francine Nelms, for the week of June 6, 1978, to June 13, 1978. The contract provided that Fischer could not leave her residence without her stepfather being with her, that she was to do all her chores and that she was to maintain an attitude of respect toward her stepfather. Fischer did not sign the contract although she read it and indicated that she understood it. On June 7, 1978, Fischer left her stepfather's place of residence without permission and travelled around the State of Florida by hitchhiking and riding the bus. She was apprehended in Venice, Florida, by the Venice Police Department. Pursuant to a hearing conducted by Mr. Arrie Owens, Youth Services Program Specialist of HRS, on June 21, 1978, Fischer had her furlough revoked because she failed to abide by her furlough agreement by virtue of her leaving her place of residence without permission. Fischer subsequently commenced this appeal.
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of March, 2019.
Findings Of Fact Bryce David Forrester attended 7th grade at Glades Junior High for the 1984-1985 school year until his alternative school assignment on May 18, 1985. Petitioner's witness Judy Cobb, Assistant Principal of Glades Junior High had no personal knowledge of Bryce David Forrester's behavior and was not the official record custodian of his records. Her testimony provided no information of probative value. Thomas Zelenak is presently Principal of Glades Junior High and was formerly assistant principal there during the 1984- 1985 school year. He had no personal knowledge of the referrals which allegedly culminated in the computer record of disciplinary referrals admitted as the School's business record (P-2). The discipline referral slips were not offered. All discipline referrals had been by teachers who were not present for hearing and all counseling of the student had been handled by retired Principal Skinner or former Assistant Principal Zahner, neither of whom were available for hearing. Mr. Zelenak also had no personal knowledge of the Respondent's alleged disruptive/ behavior which resulted in the referrals and referral slips which allegedly were behind the computer record. Mr. Zelenak did conduct a parent-administrator conference on April 1, 1985 with Respondent's parents and agreed to Respondent's continued placement at Glades Junior High School provided his behavior improved. Respondent's father testified that at this conference Mr. Zelenak told him that alternative school placement was not in the student's best interest. Mr. Zelanek denied saying this. It is significant that P-2 does not reflect this conference ever occurred even though both Mr Zelenak and Mr. Forrester agree it did occur and the occurrence of this conference is corroborated by other exhibits. Therefore, this entire computer record (P-2) is of doubtful credibility. Mr. Zelenak gave his opinion at hearing that although the student may possess the ability to become a productive student he was not doing so at Glades Junior High and that the student belongs in an alternative placement program because of his disruptive behavior and its effect on the children around him. However, there was no predicate established for Mr. Zelenek's forming this opinion. The official record of the student's final grades for the year indicates failure in three subjects on the date he was withdrawn by the parent, May 22, 1985. Respondent's position was that the School Board did not make appropriate parent contact so as to forestall the alternative school assignment and that the procedure by which School Board officials reviewed and acted upon the principal's(Mr. Skinner's) recommendation of alternative school placement was contrary to School Board Rules duly adopted and promulgated. The testimony of William R. Perry, Director of Alternative Education Placement and Donald Hollis, Coordinator, Alternative Education Placement, that the procedure by which the assignment was made was in substantial compliance with the School Board rules is accepted over a single late postmark offered by Respondent for one of the notifications.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Bryce David Forrester to an appropriate regular school program, preferably at Glades Junior High School. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Gary Forrester (Parent) 8340 S. W. 97th Street Miami, Florida 33130 Phyllis 0. Douglas, Esquire 1450 N. E. 2nd Avenue Miami, Florida 33122 Madelyn P. Schere, Esquire 1450 N. E. 2nd Avenue - Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2032 to Daniel Memorial, Inc. (Daniel), is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2032 on April 2, 2007. The RFP solicited proposals for a “20-slot day treatment program for youth placed on Probation, being released from a residential program, transitioning back into the community or classified as minimum risk, and a 100-slot service- oriented Intervention program with comprehensive case management services for youth which the programs are currently located in Pinellas and Pasco Counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $948,308, and prospective providers were required to propose a price at or below that amount EYA and Daniel submitted timely, responsive proposals in response to the RFP. Daniel’s proposal offered a slightly lower price than EYA’s proposal.1 On June 11, 2007, DJJ posted notice of its intent to award the contract to Daniel. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to Daniel. The RFP provides that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and Part III - Evaluation for Professional Accreditation in the United States. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and Daniel, the prospective provider operated other DJJ-contracted non-residential programs in Florida. The proposals could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP provides that the proposal that receives the highest total points will be awarded the contract. Daniel’s proposal received a total of 600.13 points, which was the highest overall score. Daniel received 176 points for Attachment C, including 30 points for Part III. EYA’s proposal received a total of 573.46 points, which was the second highest overall score. EYA received 143.7 points for Attachment C, including zero points for Part III. EYA contends that Daniel should not have received any points for Part III, which would have resulted in Daniel’s overall score being 30 points lower, or 570.13, and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Council on Accreditation (COA). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by COA, but its non-residential juvenile justice programs are not accredited. EYA is currently seeking COA accreditation for the services provided in its non-residential programs based, in part, on DJJ’s scoring of Daniel’s proposal in this proceeding. Daniel listed three programs in its response to Part III: a behavioral management program in Circuit 4; a conditional release program in Circuits 6 and 13; and a behavioral management program in Circuit 7. The documentation provided by Daniel to show that the listed programs are accredited was a letter from COA dated August 18, 2006. The letter confirms that Daniel is accredited by COA; that the accreditation runs through September 30, 2010; and that the accreditation includes “the following programs:” Mental Health Services Psychosocial and Psychiatric Rehabilitation Services Employee Assistance Program (EAP) Services Case Management Services Foster and Kinship Care Services Supported Community Living Services Residential Treatment Services The letter does not on its face refer to the three programs listed by Daniel in its response to Part III. The letter does not on its face reflect whether the listed services were accredited in non-residential programs (as compared to residential programs) or in juvenile justice programs (as compared to adult programs or juvenile programs that do not involve the juvenile justice system). Each of the three programs listed by Daniel in its response to Part III is a non-residential program operated under contract with DJJ. Those programs were also listed by DJJ contract number in Daniel’s response to Part I of Attachment C. Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C, was familiar with the three programs listed in Daniel’s response to Part III. He knew from his experience and his review of Part I of Attachment C that the programs were non-residential juvenile justice programs and he knew that the programs provided case management services and mental health services. Mr. Hatcher acknowledged that the COA letter does not specifically mention the three listed programs. He nevertheless considered the letter to be sufficient documentation of accreditation for the three programs because the letter indicated that Daniel, as an organization, was accredited and that it had specific accreditation for the services provided at the three listed programs. COA accredits organizations and services, not specific programs.2 On this issue, Dr. Hilda Shirk, a member of the COA Board of Trustees and an experienced COA peer reviewer, testified that “COA accreditation applies to the entire organization and the services that it provides” and that Daniel’s accreditation includes all of its programs that fall under the service areas listed in the COA letter, which is consistent with Mr. Hatcher’s interpretation of the letter. COA does not separately accredit services provided in residential and non-residential settings, nor does it separately accredit services provided to adults or juveniles. The standards used to evaluate case management services and mental health services, for example, are the same notwithstanding the setting or the type of client being served. COA performed its on-site accreditation review of Daniel in April 2006. It is unlikely that two of the three programs listed by Daniel in response to Part III -- the conditional release program in Circuits 6 and 13 (DJJ Contract No. P2013 and the behavior management program in Circuit 7 (DJJ Contract No. G8101 -- were evaluated by COA as part of that review because those programs had just started. That does not mean, however, that those programs are not accredited. Indeed, Dr. Shirk testified that an organization is not required to submit each new program to COA for review if the services offered in the program fit within a service area for which the organization has been accredited.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order dismissing the EYA’s protest and awarding the contract for RFP No. P2032 to Daniel. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 14th day of December, 2007.
The Issue May the Department of Children and Family Services revoke Petitioners' foster home license for cause?
Findings Of Fact Petitioners Ray and Gloria Hill have operated a licensed foster care home in Gadsden County, Florida, for approximately two years. Their home is licensed by DCF through Boys and Girls Town of Tallahassee, a private, not-for-profit organization which provides foster home placements for DCF. During all or part of these two years, Petitioners had two teenage girls placed in their foster care by Boys and Girls Town. These girls were J.B. (twelve years old) and A.W. (fourteen years old). Two altercations allegedly occurred between J.B. and Gloria Hill, who were the only witnesses to either event. J.B. resided with the Hills for the better part of the two years. Two days before Christmas 2000, Mrs. Hill had an argument with J.B. as a result of J.B. having opened every holiday-wrapped Christmas present under the tree. When Mrs. Hill asked her if she had done this, J.B. would not respond. There is no dispute that J.B. had Chinese food, prepared by Mrs. Hill, in her hands at that point. J.B. denied throwing the food at Mrs. Hill and asserted that Mrs. Hill slapped the food out of J.B.'s hands, and that, after several misses, Mrs. Hill slapped J.B.'s face with an open hand, at which point, J.B. began hitting Mrs. Hill. Mrs. Hill denied "initiating" the violence, but it is uncontested and both witnesses testified to hitting each other several times at that point. Mrs. Hill requested that night that J.B. immediately be removed from her care. A mark was found on J.B.'s face when she was removed from the Hills' home by authorities that night. There is no clear evidence as to what caused the mark. According to J.B.'s initial testimony at the final hearing, Gloria Hill, in a rage, pushed J.B.'s face into the dashboard airbag area of a car driven by Mrs. Hill while J.B. was riding in the front passenger seat, causing J.B.'s lip to bleed. Gloria Hill denied doing so. J.B. did not report this alleged incident to anyone for many months. She only reported it the night she was removed from the Hills' home after the Christmas 2000 incident. After J.B.'s removal from the Hills' home, and after interrogation by Boys and Girls Town social worker, Sydney Smith, J.B. recanted her accusation that Mrs. Hill had deliberately pushed her face into the dashboard airbag area of the car. At that time, J.B. stated to Mrs. Smith that Mrs. Hill had, in fact, extended her arm to keep J.B. from falling forward into the dashboard and windshield when Mrs. Hill was forced to suddenly apply the brakes to avoid a collision. Accordingly, on the basis of the prior inconsistent statement, J.B.'s testimony about the dashboard incident is not credited as a true account, and the veracity of her version of the Christmas 2000 incident is thrown into doubt. A.W. lived with Mr. and Mrs. Hill for only part of the two years that J.B. was with them. In August 2000, contrary to Mrs. Hill's prior instructions, A.W. showed J.B. an unflattering internet jailhouse photograph of J.B.'s natural mother. The printout of this photograph also revealed J.B.'s natural mother's criminal record, which J.B. did not yet know about at that time. Although A.W. testified with less clarity than might be wished, her most coherent and credible version of subsequent events is that Mrs. Hill swung at her three times with the paper computer printout and one of those swings made contact with A.W.'s face. A.W. also asserted that Mrs. Hill slapped her once in the face with her open hand before A.W. began striking and kicking Mrs. Hill. A.W. testified that she did not know if Mrs. Hill had been trying to grab her or hit her, but that Mrs. Hill's hands were "in my face." J.B. was present during this altercation, and she corroborated A.W.'s assertion that Mrs. Hill slapped A.W. before A.W. struck Mrs. Hill. Once again, Mrs. Hill denied "initiating" any violence, but she offered no other explanation of her actions, and no specific denial that she hit A.W. with the computer photograph before the general fight broke out. It is not disputed, however, that Mr. Hill, who was in another room, heard the commotion between Mrs. Hill and A.W. over the photograph, and came to Mrs. Hill's rescue by bodily removing A.W. to another area of the house. Apparently, neither A.W. nor J.B. thought Mr. Hill's actions were out of line, although he allegedly touched A.W.'s stomach when he carried her out of the room to cool-off. A.W.'s testimony that Mr. Hill hung her upside down but placed her upright on her feet without hurting her is incredible, but also immaterial, because even A.W. admits that she was out of control, that she was unharmed by Mr. Hill, and that Mr. Hill placed her upright on her feet once she was out of striking distance of Mrs. Hill. Mrs. Hill called Boys and Girls Town and demanded that A.W. be removed the night of the incident of the photograph, due to A.W.'s violent behavior. After counseling with both of them, Boys and Girls Town authorities talked Mrs. Hill into keeping A.W. until she could be placed elsewhere. A.W.'s stay with the Hills extended to two weeks, with Boys and Girls Town's approval. This indicates to the undersigned that Boys and Girls Town's social worker had no real-world concern for A.W.'s health and safety while in the Hills' care at that time. After she was removed from the Hills' foster care, A.W. wrote a letter to Mrs. Hill thanking her for her care and apologizing for hitting Mrs. Hill. At the final hearing, A.W. insisted this missive was not inconsistent with her testimony that Mrs. Hill hit her first and she merely retaliated. The removal of J.B. near Christmas 2000, resulted in either a foster care license revocation investigation or child abuse registry investigation or both types of investigation by DCF. Moreover, it appears that Boys and Girls Town mounted an investigation of its own. The outcome of any abuse investigation was not presented at the final hearing herein. However, after DCF's licensing authorities determined that Petitioner's foster care license would not be renewed, another DCF employee contacted Mrs. Smith of Boys and Girls Town, seeking to place a third child, L.T., with Petitioners. Due to her sensitivity to confidentiality issues, Mrs. Smith gave very vague information to the DCF placement employee concerning the status of one or more of the investigations against Petitioners. DCF then either directly placed L.T. with Petitioners or placed L.T. with Petitioners through Boys and Girls Town. The placement of L.T. with Petitioners after A.W. and J.B. had complained against them does not repudiate or mitigate the foregoing Findings of Fact concerning Mrs. Hill's use of corporal punishment. The placement of L.T. with the Hills was purely a mistake which was corrected by the removal of L.T. from Petitioners' care soon thereafter. Both Mr. and Mrs. Hill testified that they had severe behavioral problems with L.T. while he was with them. It is not clear whether they asked for his removal from their home or not.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
