The Issue Whether Petitioner should be placed on the convicted vendor list.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into a settlement document. The settlement document provides as follows: The Petitioner, Fisher Scientific and the Respondent, State of Florida, Department of Management Services ("Department"), by their undersigned attorneys, enter into this agreed upon settlement permitting informal disposition pursuant to Sections 287.133(3)(e)2f and 120.57(3), Florida Statutes. The Joint Stipulation of Fact entered into by the parties is attached as Exhibit A and the parties stipulate that there is no material issue of fact remaining which would require a formal hearing. The Joint Stipulation of Fact establishes that the Petitioner has satisfied mitigating elements contained in 287.133(3), Florida Statutes, including elements that raise a rebuttable presumption in favor of Petitioner, that it would not be in the public interest to place Petitioner on the Florida Convicted Vendor's List. There are no stipulated facts that overcome the rebuttable presumption. THEREFORE, the parties agree to disposition of this matter in which it is requested a Final Order be issued adopting the settlement agreement and Joint Stipulation of the parties pursuant to Sections 287.133(3)(e)2f and 120.57(3), Florida Statutes, and finding that it is not in the public interest to place the Petitioner on the Florida Convicted Vendors List. Paragraphs 1, 2, and 10 through 21 of the Joint Stipulation of Facts appended to and incorporated in the settlement document provide as follows: On June 10, 1994, FSC was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. FSC entered a guilty plea to one count of a misdemeanor Information charging FSC with making a false writing in violation of 18 U.S.C.A. Sections 1018 and 2. A copy of the Information is attached as Exhibit 1. The entry of the guilty pleas by FSC was made pursuant to a Plea Agreement with the United States Attorney for the District of New Jersey dated March 10, 1994. A copy of the plea agreement is attached as Exhibit 2. . . . Pursuant to Paragraphs 287.133(3)(a) and (b), Florida Statutes, FSC made timely notification to the Department of Management Services and provided details of the misdemeanor conviction. On October 3, 1997, the Department of Management Services issued a notice of intent pursuant to subparagraph 287.133(3)(e)1. Florida Statutes. Exhibit 6. On October 16, 1997 pursuant to subparagraph 287.133(3)(e)2., Florida Statutes, FSC timely filed a petition for formal administrative hearings pursuant to subsection 120.57(1) Florida Statutes, to determine whether it is in the public interest for FSC to be placed on the State of Florida Convicted Vendor List. Exhibit 7. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor on the Convicted Vendor List. Subparagraph 287.133(3)(e)3.d., Florida Statutes, establishes "(p)rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. (a) In March, 1994, FSC paid restitution to the U.S. Agency for International Development (AID) in the amount of $1,200,000. FSC also reimbursed AID for the cost of its investigation in the amount of $500,000. FSC paid these amounts prior to the entry of its conviction order, a copy of which is attached as Exhibit 3. On July 8, 1994, FSC paid a criminal fine in the amount of $20,000. Subparagraph 287.133(3)(e)3.e., Florida Statutes, establishes "(c)ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. (a) FSC cooperated fully and immediately with the federal authorities investigating the performance of FSC's International Division relating to certain contracts FSC entered into with foreign organizations to supply laboratory products. Payments for such products sold to foreign organizations were made to FSC by AID pursuant to various federal statutes and programs. A summary of FSC's cooperation is detailed in a letter dated May 24, 1994, to Ms. Beth Nuegass, Senior U.S. Probation officer, a copy of which is attached as Exhibit 4. FSC fully cooperated with the Department of Management Services in connection with its investigation initiated pursuant to section 287.133, Florida Statutes. Subparagraph 287.133(3)(e)3.f., Florida Statutes, establishes "(d)issociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. The individual primarily responsible for the illegal conduct resulting in FSC's conviction, John Sommer, left FSC to join FSC's competitor several days prior to the commencement of AID's investigation. Several of Sommer's subordinates who shared his culpability also left at this time. The employees who may have been peripherally involved with Sommer and who remained employed with FSC were disciplined. FSC also changed the organization structure of the International Division subsequent to its conviction. FSII, FSC's parent company, established Fisher Scientific Worldwide Inc., as the new wholly owned subsidiary responsible for managing FSC's international business. Accordingly, the entity "Fisher Scientific Company" which now conducts business with state agencies and political subdivisions in Florida is separate from the unit which conducts business with the U.S. Agency for International Development. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "(p)rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. FSC engaged in self-policing in three respects: In 1990, FSC retained the law firm of Wilmer, Cutler & Pickering as a special counsel to conduct a through investigation and provide the results to AID and the U.S. Attorney. After 1990, FSC provided additional education and training to its International Division in compliance with the country of origin requirements of AID. FSC has promulgated and reinforced with training, a Code of Business Conduct which addresses unethical and fraudulent conduct by employees, including requirements of government contracting. Exhibit 8. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "(r)einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. (a) Attached as Exhibit 5 is a letter from Mr. Robert S. Perkins, Counsel to the Inspector General of AID, to FSC's counsel stating that no further action was taken by AID in order to suspend or debar FSC from contracting with AID or any other federal agency. Subparagraph 287.133(3)(e)3.h., Florida Statutes, establishes "(t)he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. FSC has acted as the prime supplier of laboratory products to the University of Florida and the State of Florida since 1990. FSC's satisfactory performance of these contracts has enabled various public laboratories throughout Florida to perform essential functions, standardizing in many instances, products available only through FSC. In addition, the merger of Curtin Matheson Scientific, Inc. and FSC in June, 1990, brought numerous contracts to FSC to provide clinical laboratory products to public hospitals and other institutions in Florida. Action preventing FSC from bidding on the requirements for laboratory products of these various state and political subdivisions laboratories would materially reduce the competition in procurement and reduce the scope of products and services available to such laboratories. This joint stipulation provides a full and complete factual basis for determining whether FSC should be placed on the Convicted Vendor List. In light of the facts and the criteria set forth in subparagraph 287.133(3)(e)3.a. through k., Florida Statutes, there are no disputed issues of material fact between the Department of Management Services and FSC which would require a formal hearing. The parties’ settlement document constitutes an informal disposition of all issues in this proceeding.
Findings Of Fact Petitioner, Maxine Padawer, made application for Examination as a Licensed Limited Surety Agent (hereinafter the Application) on or about February 21, 1985. The Application was denied by the Department of Insurance, Bureau of Licensing, in a letter dated July 2, 1985. On August 9, 1980, approximately five and a half years ago, Padawer was detained in Orange County, Florida, for the offense of shoplifting (petit theft), a misdemeanor. Padawer appeared in court and entered a plea of no contest to the charge (petit theft) in Case No. M080-4451, which plea was accepted by the court. Adjudication was withheld and Padawer was placed on probation for a period of six months. Padawer was twenty-one years of age at the time of the charge and plea. No derogatory information, except the events and plea set forth above, was uncovered in the course of the Department's background check of Padawer. At no other time has Padawer been charged with a crime. Padawer submitted to a Psychological Evaluation on September 9, 1985, conducted by Bruce F. Hertz, Ph.D., Licensed Psychologist. Hertz concluded that there is no reason to be concerned about the reliability, trustworthiness or emotional stability of Padawer and that it is unlikely that her past behavior would reappear. Court records relating to the above detention and plea of no contest to the charge of shoplifting (petit theft) were sealed on October 8, 1985, by the County Court of the Ninth Judicial Circuit for Orange County, Florida, pursuant to Section 943.058, Florida Statutes. The isolated instance of criminal activity by Padawer came at the culmination of a long (approximately eight years) divorce by her parents which was very bitter and very traumatic for Padawer. Since 1980, Padawer has actively changed the course of her life. She has been successfully employed. For approximately two years, Padawer worked for the Exxon Car Wash and her employer found her to be very honest and responsible. He would gladly rehire her. During this time she supported her brother, Henry Padawer. Since July 1, 1984, she has been employed by bail bond agencies. According to David Mollison of Freedom Bail Bonds where Padawer has worked since January 1, 1985, Padawer handles much of the financial business of Freedom and is a signatory on Freedom's checking account. She has been completely honest and dedicated and there have been no discrepancies in the financial affairs of Freedom. Padawer has attended bonding school and taken all of the examinations connected therewith, scoring 100 on five of the tests and 98 on one. Padawer has successfully rehabilitated herself since 1980 and is a person of high character and integrity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a Final Order determining that Maxine Padawer is qualified and eligible for examination and licensure as a limited surety agent (bail bondsman) and that a license is to be issued upon satisfactory completion of the examination. DONE and ENTERED this 21st day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1986. COPIES FURNISHED: Leland L. McCharen, Esquire Legal Division 413 Larson Building Tallahassee, Florida 32301 Alan B. Robinson, Esquire O. Box 1544 Orlando, Florida 32802 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol-Plaza Level Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Respondent Proposed Findings of Fact 1-9 are adopted in substance in Findings of Fact 1-9. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF INSURANCE MAXINE PADAWER, Petitioner, vs. Case No. 85-2961 DEPARTMENT OF INSURANCE AND TREASURER, Respondent. /
The Issue The issue in this case is whether the application of Petitioner for a real estate license should be granted.
Findings Of Fact In March 2003, Mr. Giacoletti had been employed as a title closer at the Battaglia law firm in St. Petersburg, Florida. From July 2001 to March 2003, Mr. Giacoletti diverted taxes from closings he worked as a title agent. For example, if a deed required $700 in documentary stamp taxes, Mr. Giacoletti would show $700 on the closing statement, but he would actually record the deed by paying 70 cents in documentary stamp taxes and take the difference, $699.30, for himself. The reason that Mr. Giacoletti gave for committing this scheme to defraud was because of economic pressures and the death of his mother and father in 1999 and 2000, respectively. Mr. Giacoletti diverted approximately $13,285.01. Mr. Giacoletti left the Battaglia law firm in March 2003. At the time of departure from the Battaglia law firm, the scheme to defraud had not come to light. In April 2003, Mr. Giacoletti went to work for Richard T. Avis, Esquire, as a title examiner and closing agent. He did not disclose to Mr. Avis when he was hired that he had committed a scheme to defraud while at the Battaglia law firm. Auto-Owners Insurance, the errors and omissions insurer for the Battaglia law firm, paid the $13,285.01 on behalf of the Battaglia law firm. Mr. Giacoletti was arrested on October 24, 2003, and charged with committing a scheme to defraud in violation of Subsection 817.034(4)(a), Florida Statutes (2002), a third- degree felony. On September 24, 2004, Mr. Giacoletti entered a guilty plea to the offense of scheme to defraud. On the same date, the Circuit Court, Pinellas County, Florida, entered an Order of Probation, withholding adjudication, placing Mr. Giacoletti on probation for three years, requiring Mr. Giacoletti to pay restitution to Auto-Owners Insurance, and requiring Mr. Giacoletti to pay certain court assessments. Mr. Giacoletti satisfied the terms of his probation. On February 23, 2007, an Order Terminating Probation was entered, terminating Mr. Giacoletti’s probation. Mr. Giacoletti did advise Mr. Avis that he had been arrested and that an Order of Probation had been entered. Mr. Avis continued to employ Mr. Giacoletti as a title examiner and closing agent. Mr. Avis felt that Mr. Giacoletti has been a “trustworthy, reliable and conscientious employee who had secured [his] confidence and the confidence of [his] clients during [Mr. Giacoletti’s] term of employment.” Mr. Avis, who is also a real estate broker, gave Mr. Giacoletti check signing authority in 2007 for the escrow account for Mr. Avis’ title company. Mr. Avis has had several audits from his title insurers, and no significant problems have been discovered. Mr. Avis does a lot of foreclosure defense work in his law practice. He is seeking to increase his business in his real estate practice by increasing the amount of short sales that he does. Mr. Avis is hoping that Mr. Giacoletti will be given a real estate license so that Mr. Avis can develop that business area. Mr. Giacoletti filed an application for a real estate license. He disclosed on his application that he had pled guilty to the crime of scheme to defraud. On October 2, 2009, the Commission entered a Notice of Intent to Deny Mr. Giacoletti’s application. The Commission found that Mr. Giacoletti had revealed in his application that he had a criminal record; Mr. Giacoletti’s criminal history was recent in time; and Mr. Giacoletti is a convicted felon. The Commission considered Mr. Giacoletti’s criminal history to constitute the following violations: Having engaged in conduct or practice which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings by trick, scheme, or device, culpable negligence or breach of trust in any business transactions. 475.25(1)(b), 475.181, F.S. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181, F.S. The Commission further concluded that “it would be a breach of its duty to protect the health, safety and welfare of the public to license [Mr. Giacoletti] and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida,” citing Section 455.201, Florida Statutes. Carol Bonni testified on behalf of Mr. Giacoletti. She and Mr. Giacoletti became romantically involved in 2003. Their romantic relationship ended in 2005. Since 2005, Ms. Bonni sees Mr. Giacoletti socially for dinner about once a month. She feels that Mr. Giacoletti is basically a good man who made some bad decisions. At the final hearing, Mr. Giacoletti appeared to be remorseful for his past conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Mr. Giacoletti’s application for a real estate license. DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2010.
The Issue Whether respondent Department of General Services should award a contract for carpet installation, in accordance with invitation to bid number 69-360-240- F, to petitioner, to intervenor, or to neither?
Findings Of Fact The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [The invitation to bid contained the following language: 7. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit number 5. "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. [Petitioner's bid was low.] "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. The stated basis for said rejection was 'PUR 7068 not completed in full.' A check mark had not been placed in the appropriate box in paragraph 8 of said form. "7. Within 72 hours of the posting of the bid tabulation document, the petitioner delivered another PUR Form 7068 to the respondent with the appropriate box in paragraph 8 checked. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition of Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled 'Public Entity Crimes' on page four of the invitation to bid. "11. On August 23, 1990, the petitioner's Motion to Consolidate Proceedings was granted." Filling Out Forms The invitation to bid required bidders to submit completed forms PUR 7068 as part of their bids. Joint Exhibit No. 1, p. 4 ("must execute . . . form PUR 7068 . . . and enclose it with your bid") A checklist in the invitation to bid entitled "REQUIRED SUBMISSIONS" listed "PUBLIC ENTITY CRIMES FORM # PUR 7068," and stated: FAILURE TO SUBMIT EACH AND EVERY FORM AND ARTICLE OF INFORMATION REQUESTED ABOVE . . . SHALL RESULT IN DISQUALIFICATION OF THE BID. Joint Exhibit No. 1, p. 2B. The purpose of Form PUR 7068 and bid specifications pertaining to the form was to assure compliance with Section 287.133(3)(a), Florida Statutes (1989). The form PUR 7068 that Jones Floor Covering, Inc. submitted with its bid reads, in its entirety, as follows: THIS FORM MUST BE SIGNED IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER OATHS. This sworn statement is submitted with Bid, Proposal or Contract No. 69-360-240-F for Carpet Installed. This sworn statement is submitted by Jones Floor Covering, Inc. whose business address is P.O. Box 18430 Pensacola, FL 32523-8430 and (if applicable) its Federal Employer Identification Number (FEIN) is 59-0864814 (If the entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: .) My name is R. W. Jones and my relationship to the entity named above is Vice-President. I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or with the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. I understand that "convicted" or "conviction" as defined in Paragraph 287.133(1)(b), Florida Statutes, means a finding of guilty or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entity of a plea of guilty or nolo contendere. I understand that an "affiliate" as defined in Paragraph 287.133(1)(a), Florida Statutes, means A predecessor or successor of a person convicted of a public entity crime: or An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. I understand that a "person" as defined in Paragraph 287.133(1)(e), Florida Statutes, means any natural person or entity organized under the laws of any state or of the Untied States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity. Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Please indicate which statement applies.] Neither the entity submitting this sworn statement nor any officers, directors, executives, partners, shareholders, employees, members, or agents who are active in management of the entity, nor any affiliate of the entity have been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of the officers, directors, executives, partners, shareholders, employees, members, or agents who are active in management of the entity or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989 AND [Please indicate which additional statement applies.] There has been a proceeding concerning the conviction before a hearing officer of the State of Florida, Division of Administrative Hearings. The final order entered by the hearing officer did not place the person or affiliate on the convicted vendor list. [Please attach a copy of the final order.] The person or affiliate was placed on the convicted vendor list. There has been a subsequent proceeding before a hearing officer of the State of Florida, Division of Administrative Hearings. The final order entered by the hearing officer determined that it was in the public interest to remove the person or affiliate from the convicted vendor list. [Please attach a copy of the final order.] The person or affiliate has not been placed on the convicted vendor list. [Please describe any action taken by or pending with the Department of General Services.] /s/ R.W. Jones R. W. Jones, Vice President Date: May 16, 1990 STATE OF Florida COUNTY OF Escambia PERSONALLY APPEARED BEFORE ME, the under-signed authority, R. W. Jones who, after first being sworn by me, affixed his/her signature in the space provided above on this 16th day of May, 1990." Petitioner's Exhibit No. 3. As the parties stipulated, no check mark, "x" or other symbol had been placed in any blank in paragraph 8. Mr. Jones' testimony that a typist, working from a draft correctly filled out in ink, neglected to copy the crucial "x" went unrebutted. In fact, neither Jones Floor nor any of its officers, directors, managing employees or affiliates have been convicted of a public entity crime since July 1, 1989. Submitted along with Jones Floor's bid was a bid bond in the amount of $5,000 conditioned on Jones Floor's failure to enter into a contract with respondent in accordance with the terms of its bid. Joint Exhibit No. 2, p.5. When R. W. Jones learned that the form PUR 7068 submitted with Jones Floor's bid did not indicate that neither the company, its officers, directors, managing employees nor affiliates had been convicted of a public entity crime since July 1, 1989, he directed that another form be filled out so indicating. On July 25, 1989, this "corrected" form was filled out. Except for the addition of the omitted "X" it was identical in every respect to the first form PUR 7068, including the date: May 16, 1989. Mr. Jones was not placed under oath before executing either form. On October 14, 1989, petitioner had submitted an earlier version of the public entity crime form as part of its bid in response to invitation to Bid No. DGS 89/90-052 issued by respondent's Departmental Purchasing Office, which contracts separately (for departmental needs) from respondent's Division of Purchasing which contracts, as here, in order to establish terms on which all state agencies can procure certain commodities. Until shortly before the bids received in response to invitation to bid No. 69-360-240-F were opened, respondent's Division of Purchasing had allowed bidders for other contracts to cure irregularities in the execution of Forms PUR 7068 (or predecessor forms) after bids were opened. On the "dozen or two dozen" (T.163) occasions when low bidders were afforded the opportunity to correct duly notarized but otherwise irregular forms, after bids had been opened, they availed themselves of the opportunity, except in some four instances. T. 163. Perhaps the policy change disallowing corrections (inspired by a bid protest on the point) did not take place until after May 16, 1990. Branching Out A purpose of the invitation to bid was "to require the bidders to be located in . . . proximity to the locations that would be procuring and installing." T.139. Among the special conditions in invitation to bid No. 69- 360-240-F is one entitled "QUALIFICATIONS," which provides: By signing the Bidder Acknowledgment Form, the bidder certifies that his company is a viable business selling and installing carpet . . . . Joint Exhibit No. 1. A second special condition, entitled "SECTION BIDDING," states: Bidder may condition bid for award in one or more geographic sections depicted on the attached map. Bidder may bid on the section in which his business is located, and the adjacent section(s) only. . . . Joint Exhibit No. 1. On the "attached map," one section (No. 2) intervenes between the westernmost section (No. 1), which includes Pensacola, and the section involved in the present dispute (No. 3), in which Tallahassee is located. Petitioner's Exhibit No. 9. Having "discovered that . . . [he] was limited to two sections [he] could bid in," (T.54), R. W. Jones called Tallahassee and spoke to Vicky Chambers, one of respondent's employees, who told him that a bidder's branch office could meet the location requirement. She did not say "that all you had to do was set up a branch office." T.94. Two days before bids were opened, Jones Floor Covering, Inc. (Jones Floor) leased an office in Tallahassee with "a couple of hundred square feet" (T.107), and furnished it with "a desk . . . a filing cabinet and a few other odds and ends, [perhaps] a typewriter . . ." T.58. The office lacked "a per se telephone," id., and there was no reason to check Jones Floor's Tallahassee voice mailbox on a regular basis. After it was furnished, the office remained locked. A family-owned commercial flooring contractor head-quartered in Pensacola, Florida, petitioner Jones Floor does business not only elsewhere in Florida but also in several other states. "[A] battery of superintendents . . . go to these job sites." T.38. Sometimes superintendents hire locally; otherwise they take crews with them. Outside Pensacola the company "may have a trailer on the jobsite, or a mini-warehouse," id., but Jones Floor has no offices with telephones, other than the main office in Pensacola. On May 1, 1990, Florida State University (FSU) awarded petitioner an $18,848 contract for carpet installation. Petitioner's Exhibit No. 6. Work began on the FSU contract in Tallahassee only after Jones Floor had submitted the bid at issue here. A crew from Pensacola did the work in two discrete two- to-three week stints, finishing on or before August 17, 1990, without using the space petitioner had rented in its attempt to qualify as a bidder for the contract at issue here. Jones Floor has never made any use of its Tallahassee office. Nobody keeps office hours. No employees work out of the office. The office does not have electricity. Jones Floor has never solicited, accepted or conducted any business at the office, and has not advertised it as a business location. Willing and Able Intervenor All Florida Contract Carpets, Inc. filed the second low bid, a responsive bid complete with the requisite forms and accompanying submissions. All Florida Contract Carpets, Inc. has its headquarters in Tallahassee.
Recommendation It is, accordingly, RECOMMENDED: That respondent award the contract, No. 69-360-240-F, to All Florida Contract Carpets, Inc. That respondent be awarded $279 as reimbursement for the court reporter's fees for appearance at final hearing and preparation of the hearing transcript. That, upon payment of $279, any and all procurement protest bonds posted by petitioner and it sureties be discharged. DONE and ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 8, 10, 12, 13, 14, 16 through 20, 22, 23, 24, 25, 27, 28, 29, 31, 34, 35 and 38 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 9, 36 and 37 pertain to immaterial matters. With respect to petitioner's proposed finding of fact No. 15, a duly promulgated rule requires that the form be part of the solicitation. The form itself indicates it is to be submitted with the bid. With respect to petitioner's proposed finding of fact No. 21, the Department is statutorily precluded from awarding a contract to a bidder who has not executed a sworn statement. With respect to petitioner's finding of fact No. 26, he was not sworn when he signed the form. It is immaterial who typed the form. With respect to petitioner's proposed finding of fact No. 30, rejection of the bid did not render it unresponsive or make the bidder irresponsible. With respect to petitioner's proposed findings of fact Nos. 32 and 33, he was not sworn before signing the form. With respect to petitioner's proposed findings of fact Nos. 36 and 37, nothing in the evidence suggested that petitioner relied on respondent's past practice or policy, whatever it was. Respondent's proposed findings of fact Nos. 1 through 23, 28, 31 through 45, 47, 48 and 49 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 24, 25, 26 and 27, nothing in the evidence suggested that petitioner relied on respondent's past practice or policy, whatever it was. Respondent's proposed findings of fact Nos. 29 and 30 pertain to immaterial matters. With respect to respondent's proposed finding of fact No. 46, the evidence showed that Jones Floor did not have a viable business location in Section 3 at the time the bids were opened. Copies furnished to: Bruce A. Leinback, Esquire Cummings, Lawrence & Bezina, P.A. 1004 DeSoto Park Drive Tallahassee, FL 32302-0589 Susan B. Kirkland, Esquire and Jim Bennett, Esquire Office of the General Counsel Department of General Services Koger Executive Center Suite 309, Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Keith J. Kinderman, Esquire Post Office Box 647 Tallahassee, FL 32302 Ronald W. Thomas, Executive Director Department of General Services Knight Building, Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
The Issue The issue is whether the petitioner companies should be placed on the convicted vendor list.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreed Settlement. Their Agreed Settlement includes the following: This Agreed Settlement provides a full and complete factual basis for determining whether Par should be placed on the convicted vendor list. In light of the facts and criteria set forth in Subsubparagraph 287.133(3)(e)3.a. through k., Florida Statutes, there are no disputed issues of material fact between the Department of Management Services and Par, Quad and PRI which would require a formal hearing. The parties have stipulated to facts that indicate prompt payment of damages, cooperation with investigations, termination of employment and other relationships with employees responsible for the public entity crime, self-policing by Par to prevent public entity crimes, reinstatement and clemency in various jurisdictions in relation to the public entity crime, compliance with the notification provisions of section 287.133, Florida Statutes, the needs of public entities for additional competition in the procurement of goods produced by Par, and demonstrations of good citizenship. Therefore, pursuant to subparagraph 287.133(3)(e)4., Florida Statutes, the parties have stipulated to facts which create a rebuttable presumption that it is not in the public interest to place Petitioners on the convicted vendor list. The parties agree that it is not in the public interest to place Par or its affiliates on the Florida Convicted Vendor List and recommend that pursuant to subsubparagraph 287.133(3)(e)2.f., Florida Statutes, the . . . [Administrative Law Judge] issue a Final Order which adopts this Agreed Settlement and does not place Par or its affiliates on the convicted vendor list. The parties’ Agreed Settlement constitutes an informal disposition of all issues in this proceeding.
The Issue The issue in this case is whether Petitioner is eligible for licensure as a temporary resident limited surety agent.
Findings Of Fact Petitioner applied to the Department for licensure as a temporary resident limited surety agent on February 11, 2008. Petitioner completed his application for licensure on-line by accessing the Department's website. One of the questions on the application for licensure as a temporary resident limited surety agent was the following: Have you been charged, convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Initially, Petitioner responded "yes" to the question requiring that he disclose whether he had a criminal history. However, when Petitioner typed in "yes" to the question, the Department's website posted the "Stop" sign, and the Department's website did not allow Petitioner to proceed further on the application. Petitioner, with the aid of David DelGrosso, called the Department's customer service number. Petitioner told an unidentified customer service representative that after he answered "yes" to the question involving his criminal history, the Department's website had denied him further access and prevented him from answering subsequent questions on the licensure application. The Department's unidentified customer service representative then advised Petitioner to enter "No" to the question regarding any criminal history and to provide the Department with a written explanation as to his criminal history. After speaking with the unidentified customer representative, Petitioner changed his answer to the question related to his criminal history to "No." By doing so, he was able to complete and submit the on-line application for licensure. However, the answer that Petitioner gave to the question related to his criminal history was not truthful. When Petitioner submitted his application, he did not provide the Department with a written explanation as to his criminal history, as the customer service representative directed or suggested. Rather, Petitioner provided a written explanation concerning his criminal history about two months after he submitted his application and only in response to the Department's request that he do so, after its investigation revealed that Petitioner had a criminal record. On May 5, 1989, Petitioner entered a guilty plea to two felony counts of assault and was adjudicated guilty of those offenses before the Superior Court of the State of Washington for Pierce County. Petitioner was sentenced to and served 48 months in prison. Petitioner served his term of confinement and fulfilled all the terms of his sentence, including payment of a fine. Thereafter, on June 15, 1993, the Superior Court of the State of Washington for Pierce County entered a Certificate and Order of Discharge, which discharged Petitioner from the custody of the State's Department of Corrections and restored his civil rights. Since completing his sentence about 15 years ago, Petitioner has become a productive citizen in the community, has been employed in positions of trust, and has not committed any other crimes. For example, in 1994, Petitioner was licensed as a certified nursing assistant by the Florida Department of Health and, subsequently, worked as a certified nursing assistant in a nursing home and at the Sarasota Memorial Hospital. Petitioner also has been issued licenses by the Florida Department of Agriculture and Consumer Services-- a License D (concealed weapon permit) issued on July 5, 2007, and a License G (statewide firearm license) issued February 26, 2008. The foregoing licenses were issued to Petitioner despite his disclosure of his criminal history and/or because his civil rights were restored and/or his proven rehabilitation. Petitioner does not dispute that he entered a plea of guilty to two felony counts of assault and that he was adjudicated guilty of those offenses. However, Petitioner believes that given his record after being released from prison and the circumstances surrounding the incident which led to his conviction, his application for licensure as a temporary resident limited surety agent should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Financial Services, enter a final order that: (1) finds Petitioner, A.D., ineligible for licensure; and (2) denies Petitioner's application for licensure as a temporary resident limited surety agent. DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 16th day of December, 2008.
Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: Petitioner, Dr. Frank A. Brown, is a licensed psychologist having been issued license number PY-0002079. Respondent, Board of Psychological Examiners (Board), is the state agency charged with regulating the practice of psychology pursuant to Chapter 490, Florida Statutes. The parties agree that Dr. Brown is a small business party as defined in Subsection 57.111(3)(d)1.a., Florida Statutes. On August 24, 1989, the Board issued an amended administrative complaint against Dr. Brown alleging that he had violated chapter 490 in three respects while treating patient R. B. during the period from 1978 until 1987. In general terms, the complaint alleged that: Petitioner had violated sections 490.0111 and 490.009(2)(k) by committing any act upon a patient or client, other than the spouse of the doctor, which would constitute sexual misconduct. (Count I) Petitioner had violated section 490.009(2) (s) by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. (Count II) Petitioner had violated section 490.009(2)(p) by being unable to practice the profession for which he is licensed under chapter 490 with reasonable skill or competence as a result of a mental or physical condition or by reason of illness, drunkeness, chemicals or any other substance. (Count III) The complaint was later referred to the Division of Administrative Hearings and was assigned Case No. 89-0599. An evidentiary hearing on the complaint was held on September 12 and 13, 1989. At the formal hearing the agency prosecutor voluntarily dismissed Count I, and the case was tried on the remaining two counts. On May 14, 1990, a Recommended Order was issued by Hearing Officer Diane Cleavinger recommending that all remaining charges be dismissed. Of significance to this proceeding is the allegation in Count II which charged Dr. Brown with failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Bearing on Hearing Officer Cleavinger's decision to dismiss that count was her determination that the psychologist-patient relationship ended prior to the beginning of any love affair between Dr. Brown and his former patient. Among others, the hearing officer made the following findings: 5. Respondent's psychologist/client relationship was with R. B. and did not include her husband. The interest demonstrated by R. B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R. B. He met with R. B.'s husband in order to make R. B.'s termination of therapy more successful. The evidence did not show that Respondent had ever agreed to formulate a psychologist/ client relationship with R. B.'s husband and, although the husband paid R. B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during R. B.'s therapy. The other contacts, referenced by R. B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R. B.'s therapy had terminated. The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the B.'s home, asking Dr. Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. (Emphasis added) The underscored portion of the findings was intended to make a determination that any contact between Dr. Brown and R. B.'s children was not made in a professional capacity and as to those contacts the psychological/client relationship did not exist. The recommended order was considered by the Board at a meeting held on June 7, 1990, and was adopted in toto without change. A final order was issued on July 2, 1990, dismissing all charges against Dr. Brown. During the meeting held on June 7, 1990, and while discussing an exception to the recommended order raised by the agency prosecutor, the following statement was made by Board counsel: I will express now what other concern I've had with reading this case. It does seem clear that a dual relationship was formed during that period of time when there was regulation, in that Dr. Brown gave psychological services to the children of his lover, and of her unsuspecting husband. I have - you know, I'm just going to be very honest with you. When I was reading through the transcripts, some of the thoughts that occurred to me were out of his own mouth. . . (emphasis added) This statement was made in the belief, albeit incorrect, that Hearing Officer Cleavinger's findings in paragraph 5 of her recommended order regarding a dual relationship pertained only to the husband and not to the children. Counsel's statement suggested that Dr. Brown's relationship with the children was done in a professional capacity and thus was unethical, given his romantic relationship with R. B. Accordingly, prior to the issuance of a final order in Case No. 89- 0599, on June 11, 1990, the Board's counsel authored the following memorandum to counsel for the Department of Professional Regulation (DPR): By Dr. Brown's own admission, he performed psychological services for the children of R. B. The facts surrounding the dual relationship were not included in the administrative complaint filed in Case No. 89-0599. They do, however, constitute a separate cause of action and should be brought to the attention of the probable cause panel. Responding to this memorandum, DPR counsel recommended on June 18, 1990, that DPR open a new investigation against Dr. Brown concerning the issue of a possible dual relationship, that is, the testing of R. B.'s children while Dr. Brown was engaged in a love affair with R. B. The DPR uniform complaint form described the alleged misconduct in the following manner: Subject stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S. The matter was assigned DPR Case No. 9007566. By letter dated August 11, 1990, petitioner's counsel was advised that a complaint had been filed against his client. The letter gave the following pertinent reasons for initiating the matter: This complaint is based upon information obtained in formal proceedings in Department of Professional Regulation case number 0081809. It is alleged by the Department that during the time Dr. Brown was providing psychological services to the children of R. B., he was concurrently engaged in a love affair with her. This dual relationship is a possible violation of Section 490.009(2) (s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Dr. Brown, through counsel, put DPR on notice by letter dated September 5, 1990, that: It would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. By a second letter dated September 25, 1990, petitioner's counsel again advised DPR "that the Department does not have a basis in law or fact for any allegations." On October 18, 1990, petitioner's counsel authored another letter to DPR stating in part as follows: I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. I respectfully request that this letter be made a part of the investigative file to be considered by the Probable Cause Panel. DPR counsel advised petitioner's counsel on September 28, 1990, that all factual and legal matters, including the objections raised in his letter, would be presented to the probable cause panel. Thereafter, DPR counsel submitted a suggested closing order to the panel proposing that a letter of guidance be issued based upon a belief of a violation of Chapter 490, Florida Statutes, as outlined in the August 17, 1990 letter sent to petitioner's counsel. By letter dated January 11, 1991, petitioner's counsel again placed the Board on notice that the subject matter of the new investigation was barred by the doctrine of collateral estoppel. The letter stated as follows: Dr. Brown was served with the notice of investigation in August, 1990. I have advised the department of Dr. Brown's position by letters dated August 13, August 20, September 5, September 25, October 1 and October 18, 1990. This investigation stems from matters resolved in favor of Dr. Brown in DPR Case number 0081809, DOAH Case Number 89-0599 in which Dr. Brown was charged with failure to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance in violation of Section 490.009 (2)(s), Florida Statutes (1981-86). Included in consideration of that charge was the scholastic testing of the children of (D. and R. B.) which is the subject of this pending investigation. The adopted finding of fact number 5 in the above case refers to the collateral relationships between Dr. Brown and (D. B.) and the children including "testing of the B's children for scholastic purposes." Finding of fact number 5 finds that: ALL SUCH CONTACTS APPEAR TO HAVE BEEN GIVEN IN FRIENDSHIP AND NOT IN A PROFESSIONAL CAPACITY. I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. The panel met on February 14, 1991, and considered DPR's recommendation to prosecute, the investigative report and all supplemental materials including a report from its expert consultant. The panel was also given a copy of the letter sent by Dr. Brown's counsel on January 11, 1991, which raised the collateral estoppel issue. After considering all of these materials, including the estoppel matter, the panel made a determination that respondent violated chapter 490 by providing therapy to the children while romantically involved with their mother and failing to disclose this relationship to the children's school and father. While the panel found probable cause to exist, it was advised by its counsel that the case was "weak," the chances of a successful prosecution were "minimal," and the best it could hope for was a reprimand. Accordingly, it followed the suggestion of counsel and recommended to DPR that the case be closed with a letter of guidance to the subject, which was then the most lenient form of discipline for a licensee. By the admission of counsel and panel members at that meeting, however, it was clear they knew the letter would become a part of Dr. Brown's disciplinary file, it was accessible by any member of the public examining his file, and the Board could use the letter against Dr. Brown in the event of future proceedings. In disposing of the contention by Dr. Brown that the doctrine of collateral estoppel applied, DPR and Board counsel gave the following advice: Ms. Gaffney: There's a great big legal issue in this case. That is whether or not this has been litigated. If we pursue an administrative complaint, we're going to be considering whether or not he treated the children and whether or not that's below the standards. That's easily proved testimony. But we have a pending litigation for attorney's fees on that prior case and this one is a case in which Mr. Lambert, in the materials there, there's correspondence indicating respondent's attorney, Mr. Lambert, will make legal attempts to squash the case by argument and motions to dismiss, such as this has already been litigated and so forth. Possibly double jeopardy, all that. Res judicata and double jeopardy, I think, are the two issues he's raised. I don't know whether he would prevail on that or not. I have a point of view, which is that the actual issue here was not charged in the administrative complaint when it was at the final hearing before the Board. The Board took notice of and supplements, and he said well, that's not charged. You can't do anything about that. So I don't know but that would be already double jeopardy or res judicata. Ms. Daire: I would agree with you on that, that it was not charged in the initial administrative complaint. It only came out in the testimony of Dr. Brown, when he talked about having treated the children, as well, and we could not do anything about that issue that was raised during the proceedings except to issue a new administrative complaint on his own admission. Although the panel members themselves did not discuss the issue, by finding probable cause, they implicitly accepted their counsel's advice and rejected the contention that they were precluded by the doctrine of collateral estoppel from issuing a second complaint on the stated ground. On March 27, 1991, DPR counsel, acting on behalf of the Board and in response to the panel's decision, sent a letter of guidance to respondent which read as follows: This letter is sent to inform you of the action taken in regard to the above-referenced complaint. This complaint concerned allegations that you failed to meet minimum standards of performance in professional activities in violation of Section 490.009 (2)(s), Florida Statutes. It has been determined that probable cause exists to believe that you have violated the provisions governing the practice of psychology. In light of the circumstances presented, however, this case is closed with issuance of this Letter of Guidance in lieu of further administrative action. It has been noted that your professional care for the patient's children while involved with the patient on a personal basis, without disclosure to the father and school falls below minimum standards. The Panel recommends that you review current literature regarding dual relationship issues. I would encourage you to familiarize yourself with the statutes and rules governing the practice of psychology and to abide by these provisions in the future. If you have any questions or comments regarding this matter, please feel free to contact me. On March 19, 1991, or before the letter was issued, petitioner filed a motion to set aside the probable cause determination as improvidently found. After the letter was issued, he requested a formal hearing on four separate occasions. All requests were denied and a final order was issued by DPR on April 24, 1991, denying the petition in all respects. Thereafter, petitioner appealed the letter of guidance to the First District Court of Appeal. The court reversed the Board's action and remanded the matter with instructions to dismiss the complaint. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 602 So.2d 1337 (Fla. 1st DCA 1992). In dealing with the estoppel issue raised by Dr. Brown, the court noted that Hearing Officer Cleavinger had made the following findings in her recommended order: . . . and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. The court went on to say The above-quoted findings of fact establishes that the sole allegation of misconduct in the 1990 complaint was actually litigated in the 1989 case. The record in that case contains evidence that the results of testing the children were submitted to the school. The Department, the Board, and the Probable Cause Panel became bound by the determination of fact that Dr. Brown did not violate section 490.009(2)(s) because a nexus between Dr. Brown's conduct and his practice of psychology did not exist. The Department, Board, and Panel are thus collaterally estopped from reasserting any charge of professional misconduct predicated on these acts. Id. at 1341. The court also noted that a letter of guidance affected Dr. Brown's substantial interests within the meaning of section 120.57, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested. The court added, however, that because the agency was collaterally estopped from relitigating the issues raised in the second complaint, it was remanding the case with directions to dismiss the complaint. The parties are in agreement that the amount of attorney's fees and costs requested by petitioner is reasonable. Such fees and costs total $12,537.00.
