Findings Of Fact At all times material hereto, Respondent held a class "H" certificate of registration numbered GH-8500083 issued by Petitioner pursuant to Chapter 496, F.S. According to Respondent's application for registration which was submitted on or about January 23, 1984, Respondent is the President of an organization known as, "Citizens Benevolent Association - Displaced Inmate Dependent Mission." The purpose of that organization is to give housing, employment, food, clothing and toys to the dependents of inmates in central Florida. It was further indicated that the organization would raise less than $4000 each year, and contributions it received would be used to carry out the purpose of the organization. In February, 1986, Willie Rister, regional office supervisor and investigator for Petitioner, attempted to meet with Respondent concerning his charitable organization, and particularly its financial records. After two unsuccessful attempts to meet with Respondent, Rister contacted Respondent on March 12, 1986, and was told that all financial records of the organization had already been turned over to him. Respondent's financial records fail to reveal or inaccurately reveal the income and expenses of the organization. Specifically, they fail to account for all contributed funds and in-kind contributions, as well as disbursements. It appears that the organization's funds and Respondent's personal funds have been comingled, and no distinct records have been kept. It is not possible to determine which expenditures are personal and which are to carry out the purpose of the organization. The financial records are simply a listing of receipts without any explanation of the source or method of raising these funds, which appear to total approximately $9000 for 1985. Rister testified that he was unable to find any people who had been helped by Respondent or his organization. Contributed funds were used primarily for the personal expenses of Respondent or his family, or here not fully accounted for and were not used for any charitable purpose associated with the organization. Respondent advertised his organization in the Sebring News, indicating that his organization finds jobs and housing for the dependents of inmates. There is no evidence that his organization ever performed these services, and in fact the evidence presented indicates it did not.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order revoking Respondents certificate of registration numbered GH-8500083. DONE AND ENTERED this 1st day of December, 1986 in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1986. COPIES FURNISHED: Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32399 James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32399 John Joseph Heinrich 109 North Self Avenue Avon Park, Florida 33825
The Issue Does Petitioner qualify for a consumer's certificate of exemption as a "church" as defined in Rule 12A-1.001(3)(c), Florida Administrative Code, or as a "religious institution" as defined in Section 212.08(7)(o) 2.a., Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Friends Housing and Care, Inc. (Petitioner), is a non-profit corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. Petitioner has filed under the fictitious name statute and is doing business under the name Woodmere at Jacarande. Petitioner's Amended Articles of Incorporation dated October 25, 1996, state Petitioner's purposes as follows: To provide elderly families, elderly persons, and handicapped persons housing and related facilities and services specially designed to meet the physical, social, psychological, economic and spiritual needs of the aged and contribute to their health, financial security, happiness and usefulness in longer living. To plan, construct, operate, maintain, and improve housing and related facilities and services for elderly families and elderly persons. To acquire by gift or purchase, hold, sell, convey, assign, mortgage, or lease any property, real or personal, necessary or incident to the provisions of housing and related facilities and services for elderly families and elderly persons. To borrow money and issue evidence of indebtedness in furtherance of any or all of the objects of its business; and to secure loans by mortgage, pledge, deed or trust, or other lien. To engage in any kind of activity, and enter into, perform and carry out contracts of any kind, necessary or in connection with, or incidental to the accomplishment of any one or more of the nonprofit purposes of the corporation. To conduct educational or scientific research on a non-profit basis and to cooperate with foundations, educational institutions, and research centers in promoting same, with the aim of increasing knowledge and enhancing life in our society. To foster and encourage spiritual life and bring the human spirit into intimate relation with the Divine Spirit, to provide definite, organized opportunity for the development of spiritual values and for the renewal of our strength in accordance with generally accepted faith and practice of the Religious Society of Friends. Note 1 of Petitioner's audited financial statements containing the independent auditor's report dated January 8, 1997, states that Petitioner ". . .was created by Friends (Quakers) to plan and develop a Not-for-Profit Condominium Retirement Community in Florida to meet the needs of Friends and others who wish to retire or live in a Quaker-sponsored retirement community in Florida. " Note 3 to the same financial statements indicates that Petitioner's operations have been devoted to raising capital, obtaining financing, purchasing land and beginning construction on the planned retirement community. As reflected in the unaudited financial statement dated April 30, 1997, of the total reflected year-to-date expenses of $820,681: $299,548 went to architectural fees; $71,985 was spent for engineering fees; $84,265 was spent for pre-construction management fees; and $40,331 went to advertising. Only $200 was directed to worship expenses. Neither the audited financial statements nor any of the notes thereto indicate that Petitioner is engaged in any religious activities or worship services. Petitioner's retirement community will comprise 32.7 acres, with a 3.7 acre easement. There will be about 700 condominiums constructed on this acreage. Currently, it is anticipated that the first condominiums will be available for occupancy sometime in 1999. Thus, currently there are no residents residing at the Petitioner's retirement community. Petitioner will be constructing an 80,000 square foot commons building which will contain an "auditorium chapel" consisting of approximately 5,500 square feet. This building has not been constructed. The "auditorium chapel" will be used for "religious purposes and multiple-purposes." It is anticipated that both silent and program services of the Friends (Quaker) faith will be held in the chapel. Other religious faiths would also be included. There will also be located within the commons building a 6,000 square foot dining facility, 4,000 square foot library, a gift shop, beauty and barber shops, post office, banking facility, game rooms, and lounge area. Petitioner sells its condominiums to members of the general public of retirement age, regardless of their religious affiliation or even if they have no religious affiliation. Purchasers do not have to be members of the Friends (Quaker) faith. In fact, the retirement community will be a "non- denominational community." The price of the condominiums ranges from about $82,000 for a one-bedroom (676 square foot) unit, to well over $200,000 for a large (2100 square foot) unit. In addition to the sales price, Petitioner will charge its residents a monthly condominium fee to cover maintenance. An activity or club fee will also be charged by Petitioner to cover residents' social activities and transportation costs. If a resident needs medical attention, Petitioner will provide the care and bill the resident's insurance company for the cost of the care. Several witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Friends Fellowship," while other witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Fellowship." The newspaper advertisements or other published advertisements advertising meetings at Petitioner's location did not refer to "Woodmere Friends Fellowship" or "Woodmere Fellowship." An advertisement appearing in "Quaker Life" in June 1997, indicated that "All Friends Fellowship" was located at Woodmere at Jacaranda. A newsletter from Petitioner dated January 1997, stated that "Friends Inter-Faith Fellowship" was begun at Woodmere Information Center and that several prospective residents from the Venice/Englewood area had "voiced interest in having a meeting in this area. Presently, these meetings are being held every Sunday evening at 6:30 p.m." Additionally, this newsletter stated that these meetings were consistent with Petitioner's federally-recognized religious affiliation. However, Petitioner is never identified as a church or religious institution in this newsletter. By letter dated February 17, 1997, William R. Martin, Petitioner's Chairman, advised the Department that "[o]ur Worship group is being identified as the Woodmere All Friends Fellowship." In an advertisement dated February 1, 1997, Woodmere at Jacaranda, a Quaker-sponsored, resident-owned retirement community, invites interested people to attend a fellowship hour at 6:00 p.m. the first and third Sunday of each month. This advertisement does not refer to Petitioner as a church or religious institution. The bulletins, advertisements, newsletters, and other evidence submitted by the Petitioner do not refer to Petitioner as a church or religious institution. The hours of operation posted on the doors to Petitioner's premises indicate that Petitioner is open Monday through Friday from 9:00 a.m. to 5:30 p.m., and Saturday from 9:00 a.m. to 1:00 p.m. There were no hours listed for Sunday. Additionally, there was nothing to indicate that worship service or religious activities were being conducted by Petitioner on its premises. Although there are meetings being held at Petitioner's location where religious services or activities are being conducted on a somewhat regular basis, there is insufficient evidence to show that Petitioner is responsible for, and conducting, those religious services or activities. Petitioner's sole purpose is not to provide free transportation services to church members, their families, and other church attendees. Petitioner is not a state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. Petitioner does not own or operate a Florida television station whose programs are of a religious nature. Petitioner does not provide regular religious services to Florida state prisoners. Friends Housing and Care, Inc., d/b/a Woodmere at Jacaranda is a Quaker-sponsored, resident-owned, retirement community whose primary function is the development and marketing of a retirement community to members of the general public, regardless of religious affiliation. Petitioner intends to use its sales tax exemption primarily to purchase building materials, including those building materials for the condominiums which it produces for sale to the general public, regardless of their religious affiliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's application for sales tax exemption. DONE AND ENTERED this 25th day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1998. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lattera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Nick Roknich, Esquire Dunlap, Moran, Roknich, and Gibson, P.A. 1819 Main Street, Suite 700 Sarasota, Florida 34236 Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue Whether Petitioners " . . . provide[d] direct services in a local fiscal agent's area (so that they may) . . . receive the same percentage of undesignated funds as a percentage of designated funds they receive . . . ", Section 110.181 (2)(e), Florida Statutes (2006), in relation to the 2006 Florida State Employees' Charitable Campaign (the 2006 Campaign).
Findings Of Fact Stipulated Facts The Florida Legislature created the Florida State Employees' Charitable Campaign in 1993 ("Campaign"). § 110.181(1)(a), Fla. Stat. (2006). The Act requires the Department to "establish and maintain" an annual Campaign, which "is the only authorized charitable fundraising drive directed toward state employees within work areas during work hours, and for which the state will provide payroll deduction." § 110.181(1)(a), Fla. Stat. (2006). State employees are provided annually with a pledge card that allows them to direct their donations to particular charities. Each employee is given a booklet containing a list of those charities that have qualified to participate in the Campaign. Each employee can either pick from the pre-qualified list, or the employee can give "undesignated funds" that go to no particular charity. The Act requires the creation of a Statewide Steering Committee ("Committee") of seven members appointed by the Administration Commission, and two members appointed by the Department Secretary, all serving staggered terms. § 110.181(4), Fla. Stat. In addition to the Committee, the Act calls for the creation of several other steering committees, one "in each fiscal agent area," whose purpose is to "assist in conducting the campaign and to direct the distribution of undesignated funds" ("local steering committees"). § 110.181(2)(d), Fla. Stat. The Department is required to select through the competitive procurement process a "fiscal agent" or agent whose duties are limited to "receiv[ing], account[ing] for, and distribut[ing] charitable contributions among the participating charitable organizations." § 110.181(2)(a), Fla. Stat. United Way of Florida, Inc., served as the state wide fiscal agent during the 2006 Campaign. Petitioners are 21 charities that were approved by the Committee and participated in the 2006 Campaign. Petitioner Community Health Charities is a "federation" or "umbrella" agency within the meaning of Rule 60L-39.0015(j), Florida Administrative Code, representing each of the other Petitioners in the 2006 Florida State Employees' Charitable Campaign ("2006 Campaign" or "FSECC"). Each Petitioner is either a charity or a federation within the meaning of the Act that participates in the annual statewide campaign and has a direct interest in the proper administration of the Act, including the distribution of designated and undesignated charitable funds generated thereby. Additional Facts Section 110.181(3), Florida Statutes, grants rulemaking authority to the Respondent in association with the time and manner for charitable organizations to participate in the Campaign. This process is undertaken upon the recommendations of the Committee. In accordance with those opportunities Respondent had adopted administrative rules to implement Section 110.181, Florida Statutes. Among the rules in the Florida Administrative Code were the following: 60L-39.001 (scope and purpose); 60L- 39.002 (general requirements); 60L-39.003 (Statewide Steering Committee); 60L-39.004 (Eligibility Criteria for Participation by Charitable Organizations); 60L-39.005 (Application Procedures); and 60L-39.006 (Duties and Responsibilities of the Fiscal Agent). None of these rules defined the term "direct services" in a "local fiscal agent's area", referred to in Section 110.181(2)(e), Florida Statutes (2006), as that statute controls the opportunity for a charitable organization to receive undesignated funds from the 2006 Campaign. This has been explained as the "first tier distribution" of undesignated charitable contributions made by state employees. After the 2006 Campaign commenced, Respondent adopted a rule that defined the term "direct services." Florida Administrative Code Rule 60L-39.0015(1)(i) provided that definition. The rule was effective January 23, 2007. It defined the term "direct services" as: Direct services. Identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served. The 2006 Campaign began in the summer of 2006. December 22, 2006, was the deadline for applying for first tier undesignated funds. Application was made upon a form created for use in the 2006 Campaign. Petitioner's Exhibit numbered 2. On October 17, 2006, by e-mail, Petitioners were made aware of the direct local services certification form and its guidelines, contained in one document, Petitioners' Exhibit numbered 2. Explanations were provided. The e-mail came from John Kuczwanski, Committee Chairman. This document referenced distribution of the first tier undesignated funds for the 2006 Campaign. It said in pertinent part: As a result of recent changes to the FSECC Law (s. 110.181(2)(d) and (e), Florida Statutes), the Statewide FSECC Steering Committee is in the process of implementing rules and a process by which federations and unaffiliated/independent organizations will submit information, regarding provision of direct local services in each fiscal agent United Way area, in order to receive a pro- rata share of undesignated funds. The final process and rules will take effect in 2007, and will become a part of the 2007 FSECC application cycle and are a result of input during our rules promulgation process. Because these formal rules will not be implemented until 2007, an interim process will be in place for the 2006 FSECC. As such, the following process will be utilized by federations and unaffiliated/independent organizations to determine where direct local services are being provided, and thereby eligibility for a pro-rata share of 2006 undesignated funds. Attached is a spreadsheet, which you must complete and submit to the Statewide FSECC Steering Committee no later than close of business on Friday, December 22, 2006. Instructions for Federations: On the attached spreadsheet, please enter the requested information for your federation and each of your member agencies (that have been approved to participate in the 2006 FSECC) that provide direct local services in the appropriate Fiscal Agent United Way sections. Each section identifies which county(ies) are included in that fiscal agent area. Only enter agencies in the fiscal agent section(s) in which that agency provides direct local services, as defined on the spreadsheet. The attached spreadsheet (form), in relevant part contained the following: 2006 Florida State Employees' Charitable Campaign Direct Local Services Certification Form GuidelinesDEADLINE: December 22, 2006 [Forms received after the deadline will result in ineligibility for a pro-rata share of undesignated funds.] Federation Name: OR Unaffiliated/Independent Organization Name: Contact Person: Email Address: Telephone Number: INSTRUCTIONS: Please enter the requested information below for each of your federation's member agencies (that have been approved to participate in the 2006 FSECC) that provide direct local services in the appropriate United Way Fiscal Agency sections below. Unaffiliated/independent organizations should provide the requested information in the appropriate sections for the areas in which your organization provides direct local services. Name of Organization Organization Address Address(es) where the direct service(s) were delivered in the previous calendar year (2005) Description of the type of direct service(s) delivered ["Direct services" is defined as identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served.] # of people served/Population served * * * The form goes on to describe the areas served by the United Way fiscal agents, as examples United Way of the Big Bend, with its respective counties and the United Way of Brevard County, with its respective counties. It was contemplated that the charities seeking participation in distribution of first tier undesignated funds identify the organization by name, its address, addresses where direct services were delivered in the previous calendar year, etc., in relation to all of the United Way fiscal agent areas. Petitioners and other charities seeking participation in the first tier distribution of undesignated funds were expected to proceed without further direction from the Committee or Respondent when completing the 2006 Direct Local Services' Certification Form. Concerning the rule adoption process referred to in the e-mail, on October 16, 2007, the Committee had met to review proposed rules under consideration that supported the process of charitable campaigns recognized in Section 110.181, Florida Statutes. Prior to that date, the Respondent had held meetings and conducted workshops related to rule development. As a result, Florida Administrative Code Rule 60L-39.015, and an amendment to Florida Administrative Code Rule 60L-39.005, were adopted and became effective January 23, 2007. The amendment within Florida Administrative Code Rule 60L-39.005(5), incorporated by reference Form DMS-ADM-102, effective January 23, 2007, the same date the overall Florida Administrative Code Rule 60L-39.005 was amended. The incorporated form differed in appearance when compared to the 2006 Direct Local Services Certification Form with guidelines that had been provided in relation to the 2006 Campaign. The difference was that the Form incorporated by reference was titled "Agency Direct Local Services Certification Form". It spoke of a March 1 deadline with no specific year. It spoke of a need to provide the federation name, contact person and telephone number. It carried the same headings in the five columns related to the provision of the information about direct services in the 27 United Way fiscal agent areas. In its instructions it stated: Each federation is required to submit this form for all member agencies that provide direct local services, as defined in Rule 60L-39.0015(i), Florida Administrative Code, in the appropriate local fiscal agent sections below and provide with their annual application package. Independent or unaffiliated agencies must provide this form with their annual application. Gwen Cooper, president and CEO of Community health Charities of Florida (CCH), helped the members of the federation, the other Petitioners in this cause, complete the 2006 Direct Local Services Certification Form with guidelines. This included contacts by telephone and e-mails to address the proper response to the form on the part of the member charities. In addition, Ms. Cooper prepared a different form, designed to assist the member charities in presenting needed information. That form called for a deadline of December 5, 2006, for submission to her of information provided by the member charities on the form prepared by Ms. Cooper. The return information was then edited and utilized in her preparation of the 2006 Campaign Direct Local Services Certification Form with guidelines that had been made available by the Committee on October 17, 2006. An example of the instructions for a member charity as filled out by the charity on the form created by Ms. Cooper is Respondent's Exhibit numbered 6 pertaining to the Leukemia & Lymphoma Society, Palm Beach Chapter. The completed Direct Local Services Certification Forms with guidelines for the 2006 Campaign for all CHS member charities is Petitioners' Exhibit numbered 12A. Importantly, the instructions provided in the Cooper form directed to the CHC member charities, stated: INSTRUCTIONS: Please enter the requested information below for each fiscal agent regional area where your agency provides direct local services. Simply recording the office in that region is not enough. Please keep your descriptions concise and general. There is no need to give lengthy details for each region. If you know the number of people served in that region, please record it. If not, please provide an estimate or put NA. If you do not provide services in a particular regions (sic), please put NA in the Description column. If you have more than one office in a particular region, please list all the offices. We will review all submissions and call with questions. Feel free to add lines as needed. This record is for services rendered in Calendar Year 2005. As can be seen, this was a departure from the instructions provided by the Committee in the 2006 Campaign Direct Local Services Certification Form with guidelines previously described, Petitioners' Exhibit numbered 12A representing the completed form for all CHC member charities. The Committee met on February 14, 22, and 28, 2007, to consider the 2006 Campaign Direct Local Services Certification Forms with guidelines completed by Petitioners and other charitable groups. Dr. Kenneth Armstrong, Jr., Executive Director of the United Way of the Big Bend, attended the February 14, 2007, Committee meeting. At the meeting he presented the Committee members with a document intended to express his opinion concerning the basis for deciding whether Petitioners and other charitable organizations were entitled to receive first tier undesignated funds. Petitioners' Exhibit numbered 4. In this document, Dr. Armstrong critically comments on the entitlement of Petitioners, unaffiliated and independent charitable agencies to receive first tier undesignated funds. In his written remarks, he opposes the right for some Petitioners to receive the first tier undesignated funds, while explaining his reasons. These suggestions were favorably received by Respondent's counsel who advised the Committee during the meeting. In particular, counsel stated that he found Dr. Armstrong's approach created an " . . . incisive analysis of the kind of activities that could not reasonably be considered direct services . . . ". While the Committee was left to arrive at its own decision concerning Petitioners' entitlement to receive first tier undesignated funds, Dr. Armstrong's ideas given credence by Respondent's counsel were accepted as part of that process. The work was not completed on February 14, 2007, and the Committee reconvened on February 22, 2007, to continue consideration of the 2006 Campaign Direct Local Services Certification Forms. The Committee met again on February 28, 2007, to consider the 2006 Campaign Direct Local Services Certification Forms. By then the forms had been divided among the Committee members, with each Committee member being responsible for review and recommendation in relation to his or her part of the assignment. The discussion in the session was at best abbreviated concerning the decision to include or reject a charity in a locale in relation to receiving first tier undesignated funds. One Committee member left the meeting and his portion of the assignment was dealt with by the remaining Committee members reviewing the annotations of the missing member indicating denial or approval of a given charity. There were other notes as well on these materials assigned to the Committee member who left the meeting. The remaining Committee members approved the recommendations by the missing Committee member. On March 8, 2007, the Committee made its decision and e-mailed Petitioners concerning its position on the "2006 FSECC Direct Local Services Certification" spreadsheets (forms). The e-mail is Petitioners' Exhibit numbered 10. The reference line in the e-mail is "Distribution of 2006 FSECC undesignated funds -- Direct Local Services Certification". The reason for this preliminary decision was: After three meetings, the FSECC Statewide Steering Committee has completed its review and voted on all 2006 FSECC Direct and Local Service Certification spreadsheets previously submitted for its consideration. Attached is the final spreadsheet that lists all charitable organizations that were approved by the Committee and deemed, based on the information submitted, to be providing direct local services in at least one United Way fiscal agent area. Charitable organizations not included on the attached list were not deemed to be providing direct local services, based on the information submitted. Direct local services, as defined on the certification form and in Rule, are "identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served." The 59 charitable organizations included on the attached list will receive a pro-rata share (based on their local designation percentages in 2006) of the 2006 undesignated funds, in the Fiscal Agent United Way areas within which they were deemed to be providing direct local services, as indicated on the attached by an "X" in specific United Way fiscal agent columns. Thank you, The FSECC Statewide Steering Committee The above-quoted language in the e-mail notification that refers to the certification form is understood to mean the 2006 Campaign Direct Local Services Certification Form with guidelines. The comment in the e-mail concerning the "rule" where it says "identifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served" is taken directly from Florida Administrative Code Rule 60-39.0015(1)(i), effective January 23, 2007, with its definition of "direct services." As the March 8, 2007, e-mail summarizes, CHC had 16 member originations approved. At the time the preliminary decision was communicated, the Committee had approved approximately 18.64 percent of Petitioners' individual submissions. The basis of the denial of the remaining submissions seeking receipt of first tier undesignated funds was not explained. This led to the original petition challenging the decision to deny rights to receive first tier undesignated funds filed on March 30, 2007. The history of the case beyond that point has been explained in the Preliminary Statement, to include the basis for proceeding before DOAH. On August 24, 2007, after the case had been referred to DOAH for hearing, Respondent published notice in the Florida Administrative Weekly, Volume 33 No. 34, to this effect: The Florida Department of Management Services announces a public meeting to which all persons are invited. DATE AND TIME: September 10, 2007, 9:00 a.m. - 12:00 Noon PLACE: 4050 Esplanade Way, Room 101, Tallahassee, Florida GENERAL SUBJECT MATTER TO BE CONSIDERED: Review and Approval of Local Steering Committee Members. Community Health Charities lawsuit and re-visit on direct services determinations. A copy of the agenda may be obtained by contacting: Erin Thoresen, Department of Management Services, 4050 Esplanade Way, Suite 235, Tallahassee, FL 32399-0950, (850)922-1274. If any person decides to appeal any decision made by the Board with respect to any matter considered at this meeting or hearing, he/she will need to ensure that a verbatim record of the proceeding is made, which record includes the testimony and evidence from which the appeal is to be issued. * * * Respondent's Exhibit numbered 24. The notice by its terms did not explain in any detail what might be achieved during the course of the meeting to consider the pending "lawsuit" and revisit issues in relation to direct services determinations. The "lawsuit" related to the pending administrative proceeding in DOAH Case No. 07-3547. Barton Cooper, CHC Director of Corporate Development, attended the meeting with Petitioners' counsel. No presentation was made by Petitioners, as they were uncertain of Respondent's intentions when the meeting was advertised in the Florida Administrative Weekly, and understood that litigation was ongoing before DOAH. Nonetheless, Mr. Cooper expressed his appreciation for the Committee's willingness to revisit the issue of the remaining Petitioners' entitlement to receive first tier undesignated funds. On this occasion the Committee conducted an additional review of material provided by Petitioners. Those materials were constituted of Petitioners' Exhibit numbered 12A, the original December 22, 2006, Direct Local Services Certification Forms for the rejected applicants for first tier undesignated funds and Exhibit 2 to the Amended Petition for Formal Administrative Hearing filed March 30, 2007, with the Respondent. (Exhibit 2 became Petitioners' Exhibit numbered 12B, admitted at the final hearing.) This exhibit provides additional information concerning member charities within CHC and supporting argument for their inclusion in the distribution of first tier undesignated funds. As a consequence of the Committee's efforts, approximately 77 percent of Petitioners' applications made originally were approved, leaving 21 Petitioners denied the ability to receive first tier designated funds in one or more of the United Way fiscal agent areas. On September 12, 2007, the Committee made known its "Amended and Revised FSECC Direct Services Determinations for the 2006 Campaign" in correspondence directed to Petitioners. Petitioners' Exhibit numbered 13. In explanation, the written communication stated: On September 10, 2007 the Statewide Steering committee decided to re-visit issues on direct services determinations. In accordance with Exhibit 2 of the Second Amended Petition for Formal Administrative Hearing, the participating Community Health Charities, within the fiscal area listed, were revisited. The Direct Local Services Certification Forms submitted on behalf of your organization and/or your member agencies were reexamined for compliance with the eligibility criteria for a receipt of undesignated funds based upon the provision of direct services. Direct services are defined as "[i]dentifiable and specific services available in the local fiscal agent's area without any intervention between the services offered and persons served." Rule 60L-39.0015(1)(i), Florida Administrative Code. Applicant organizations named above that did not meet the criteria for direct services were denied by the FSECC Statewide Steering Committee. This explanation referred to the definition of direct services found within Florida Administrative Code Rule 60-39.0015(1)(i), effective January 23, 2007. It also mentioned reliance upon Exhibit numbered 2 to the Second Amended Petition for Formal Administrative Hearing (Exhibit 2 accompanied the Amended Petition for Formal Administrative Hearing as well). The memorandum decision pointed out a spreadsheet attached describing those charities whose application forms had been reexamined on September 10, 2007, noting approvals and disapprovals. The attachment to the September 12, 2007, amended revised FSECC Direct Local Services determination for the 2006 Campaign breaks out the agencies approved as to locations within United Way fiscal agents areas, those approved earlier and those approved by actions taken on September 10, 2007. Those approvals are noted by marking the letter "X" in the column for each agency earlier approved or approved on September 10, 2007, as to each charity and every United Way fiscal agent area. Concerning the remaining requests to receive first tier undesignated funds by those 21 Petitioners, information necessary to decide entitlement is found within the 2006 Campaign Direct Local Services Certification Form with guidelines (Petitioners' Exhibit numbered 12A); the explanations found within Exhibit 2 to the Amended Petition for Formal Administrative Hearing, which became Petitioners' Exhibit numbered 12B and a series of exhibits admitted at hearing, Petitioners' Exhibit numbered 21 through 38. Those latter exhibits provide explanations pertaining to the 21 disappointed Petitioners, expanding what is known about the charities, their services, the manner that the services are provided, who receives the services and where the services are received, together with the address(es) of the respective organizations. In addition, the depositions of Paul Andrew Ledford of Florida Hospice and Palliative Care (Joint Exhibit numbered 2); Susanne Homant, National Association of Mentally Ill in Florida (Joint Exhibit numbered 3); Deborah Linton, Association for Retarded Citizens of Florida, Inc. (Joint Exhibit numbered 4); Suzanne Earle, Children's Tumor Foundation (Joint Exhibit numbered 5); Pamela Byrne, Leukemia & Lymphoma Society (Joint Exhibit numbered 6) and Tracy Tucker, Cystic Fibrosis Foundation (Joint Exhibit numbered 7) afford additional insight on the subject of who is served, where they are served etc., pertaining to the subject. Without recounting the details from the various sources previously described, all that information is accepted for purposes of this Recommended Order, as to the facts represented in the exhibits. Based upon information provided in the aforementioned exhibits, the Association for Retarded Citizens/Florida, CHC, Florida Hospices and Palliative Care and the National Alliance for the Mentally Ill of Florida do not provide direct services in fiscal agent areas without intervention between the services offered and persons served in any location. Based upon information provided in the aforementioned exhibits, ALS Association provides direct services in the Heart of Florida United Way fiscal agent area, contrary to the impression held by the Committee before the final hearing. Based upon information provided in the aforementioned exhibits, the Cystic Fibrosis Foundation provides direct services in the United Way fiscal agent areas in Lake and Sumter, Okaloosa-Walton, Santa Rosa, and Volusia-Flagler, for reasons comparable to the practice of the Committee when making its earlier determinations. Based upon information provided in the aforementioned exhibits, the Lupus Foundation of America, Southeast Florida Chapter, provides direct services in the United Way fiscal agent areas in Broward and Palm Beach counties. Of the unapproved requests for first tier undesignated funds made by remaining Petitioners in other specific United Way fiscal agent areas, the facts do not support those requests.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered that allows Petitioners to receive first tier undesignated funds in relation to the 2006 Campaign to the extent identified and denies any additional relief requested in the Third Amended Petition for Formal Administrative Hearing. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 29th day of February, 2008. COPIES FURNISHED: David C. Hawkins, Esquire David C. Hawkins, PLLC 3141 Brockton Way Tallahassee, Florida 32308 Matthew F. Minno, Esquire Gerard York, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 David Andrew Byrne, Esquire Phillips Nizer LLP 666 5th Avenue New York, New York 10103-0001 James A. Peters, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda South, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Tel-World Ministries (petitioner), is a private, non-profit association formed on January 24, 1996. According to its articles of association, petitioner was formed "to operate for the advancement of religion, religious education and charitable purposes, by the distribution of its funds for such purposes, and in particularly to promote understanding and truth and save soul's in Christ Jesus." Its president is Frederick J. Hoffman, a resident of Holly Hill, Florida. Respondent, Department of Revenue (DOR), is charged with the responsibility of administering and implementing the Florida Revenue Act of 1949, as amended. It has the specific task of collecting sales taxes and enforcing the State Tax Code and rules. By law, certain transactions are exempt from the state sales and use tax. Among these are sales or lease transactions by qualified "charitable" or "religious" institutions. In order for an organization to be entitled to an exemption, it must make application with DOR for a consumer's certificate of exemption and demonstrate that it is a qualified religious or charitble organization within the meaning of the law. Once the application is approved, the certificate entitles the holder to make tax-exempt purchases that are otherwise taxable under Chapter 212, Florida Statutes. Claiming that it was entitled to a certificate of exemption as either a religious or charitable organization, petitioner filed an application with DOR on an undisclosed date in early 1996. The application itself has not been offered into evidence. After requesting additional information, on April 26, 1996, DOR preliminarily disapproved the application on the grounds petitioner did not qualify under the statutory definition of a religious institution, and it did not have as its primary purpose one of seven defined charitable purposes set forth in the law. Thereafter, petitioner filed a request for hearing to contest this decision. In its request for hearing, petitioner contended, among other things, that DOR had failed to consider the legislative intent of the law, failed to consider an amendment to the application, and failed to properly interpret its own rules and the general law. Petitioner agrees it is not a church but rather is a ministry. It has no building or established physical location from which it provides charitable or religious services. As described by its president at hearing, its president, and perhaps two other officers, go to other churches, primarily the Seventh Day Adventist Church, and they "assist" the pastors of those churches by giving "input" at mass, prayer, and Bible study classes. The association also disseminates religious materials, including brochures and the like. Under Section 212.08(7)(o)2.b., Florida Statutes, a charitable institution is generally defined as an entity which holds a current exemption from the federal income tax under Section 501(c)(3) of the Internal Revenue Code. The entity must also have as its "sole or primary function" the provision of, or raising funds for organizations which provide, one of seven defined charitable services, if a reasonable percentage of such services is provided free of charge, or at a substantially reduced cost, to persons who are unable to pay for such services. The parties agree that petitioner has a current exemption from the federal income tax under section 501(c)(3) and, in this respect, it meets the statutory requirements. Petitioner contends that its sole or primary function is to provide services of the type that fall within the charitable purpose defined in subparagraph (IV) of the statute. That purpose is defined as being "(s)ocial welfare services including adoption placement, child care, community care for the elderly, and other social welfare services which clearly and substantially benefit a client population which is disadvantaged or suffers a hardship." According to petitioner, it does God's work at other churches by assisting those churches' pastors in saving souls, and thus these services fall within the broad definition of "social welfare services." However, within the narrow context of the statutory exemption, and when the term "social welfare services" is given its plain and ordinary meaning, religious or spiritual activities do not qualify as "charitable" services. In general terms, to qualify as a religious institution, an entity must be (a) a church, synagogue, or established physical place for worship at which nonprofit religious services and activities are regularly conducted and carried on, (b) a nonprofit corporation the sole purpose of which is to provide free transportation services to church members and attendees, (c) a "state, district or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within the state or district organization," or (d) a corporation qualified as nonprofit under section 501(c)(3) that owns or operates a Florida television station. Petitioner has no "established physical place for worship," its sole purpose is not to provide free transportation services to church members and attendees, and it does not operate a television station. Thus, it cannot qualify under the first, second and fourth parts of the definition. Petitioner's president contends, however, that he represents the "state office" of Tel-World Ministries, and therefore the association meets that part of the test. It is noted that the only "office" within the entity is that found in Holly Hill and it is not a part of a larger organization. Under DOR policy, in order to pass muster as a state, district or administrative office, petitioner must be a part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. This interpretation of the law is found in prior agency orders and is deemed to be reasonable. Because petitioner does not comport with this policy, it cannot qualify as a "state administrative office" within the meaning of the law. In summary, while petitioner submitted evidence to show that it is engaged in laudable religious efforts, the entity itself does not qualify as a religious or charitable institution for tax purposes, and thus it is not entitled to a consumer certificate of exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a Final Order denying petitioner's application for a consumer certificate of exemption as a religious or charitable institution. DONE AND ENTERED this 7th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1996. APPENDIX TO RECOMMENDED ORDER Respondent: Respondent's proposed findings, while substantially altered, have been adopted in substance. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Frederick J. Hoffman 1728 Derbyshire Road Holly Hill, Florida 32117 William B. Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue Whether the Petitioner, Spiritual Kingdom of God the Creator of All Universes, should receive a consumer's certificate of exemption.
Findings Of Fact The Respondent is the state agency charged with the administration of Chapter 212, Florida Statutes. On or about February 4, 1999, the Petitioner submitted an application for consumer’s certificate of exemption. Such application sought exemption as a religious organization. On February 17, 1999, the Department issued a letter to the Petitioner acknowledging receipt of the application and requesting additional information about the Petitioner in order to complete the application review. On March 15, 1999, the Department issued a second notice to the Petitioner that mirrored the prior request for additional information. On April 26, 1999, the Department issued a third letter that advised Petitioner that it had failed to demonstrate that it meets the criteria as a religious institution as defined by Section 212.08(7), Florida Statutes. This letter outlined the criteria that would support the approval of the certification sought by the Petitioner. On June 11, 1999, the Department issued a Notice of Intent to Deny the Petitioner’s application for a consumer’s certificate of exemption. Thereafter the Petitioner requested an administrative hearing to contest the agency’s decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying the Petitioner’s application for a consumer’s certificate of exemption. DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1999. COPIES FURNISHED: Wendell Phillips Spiritual Kingdom of God the Creator Post Office Box 331228 Coconut Grove, Florida 33233-1228 George C. Hamm, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Joseph C. Mellichamp, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether Respondent, the Department of Revenue, should grant Petitioner's application for a consumer's certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a nonprofit organization incorporated under the laws of the State of Florida on or about August 27, 1997. Petitioner applied to Respondent for a consumer's certificate of exemption from sales and use tax. While the application indicates that it is based on exemption status as an "enterprise zone," Petitioner clarified at final hearing that it actually was basing its application on exemption status as a "charitable institution." ("Enterprise zone" is not an exemption category under the applicable statutes. See Conclusions of Law, infra.) The IRS has determined that Petitioner is exempt from federal income tax under IRC Section 501(a) as an organization described in IRC Section 501(c)(3). A letter dated February 2, 1999, stated that Petitioner: was formed in 1997 to plan and implement redevelopment efforts in the Greater Newtown Community which lead to overall improvement in the quality of life of its residents. In the short time since our inception, we have responded to community needs by implementing a broad range of programs that will have a positive impact on our community. But from the evidence presented (which included no testimony from either party), it is difficult to ascertain factual detail about Petitioner, its activities, or its finances. In addition to grant application and fund-raising activities, it appears that Petitioner has been involved in informational and participation-recruitment meetings and information-gathering surveys for planning purposes (called the Business Retention and Expansion Survey). Petitioner also appears to have been involved in a Storefront Renovation Program and several community celebrations. Petitioner has plans for other economic and community redevelopment activities. But it cannot be ascertained from the evidence which of the other economic development activities have taken place and which are still in grant application or planning stages. For example, documentation regarding Petitioner's involvement in one activity refers to the activity as the "proposed WAGES Employment Challenge." Petitioner obtained $128,000 of funding from the City of Sarasota for seed money for its economic redevelopment and other activities. Petitioner budgeted to spend the $128,000 in 1998. The entire budget consists of salaries, fringe benefits, and overhead expenses. According to a "Profit and Loss" statement for January through October 1998, Petitioner spent $30,581.49 during that time period. All of those expenditures were in the category of payroll and overhead expenses. One activity referenced in Petitioner's documentation is Petitioner's "partnering" with financial institutions and mortgage brokers to process mortgage loans for affordable housing. In that case, the expenditures would be by the other institutions, not by Petitioner. There is no information as to any other expenditures made by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying Petitioner's application for a consumer's certificate of exemption from sales and use tax. DONE AND ENTERED this 5th day of November, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 5th day of November, 1999. COPIES FURNISHED: Bill Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Cynthia E. Porter, Executive Director Greater Newtown Community Redevelopment Corporation 1751 Dr. Martin Luther King, Jr., Way Sarasota, Florida 34234 Joseph C. Mellichamp, III, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue presented is whether Petitioner is entitled to a consumer certificate of exemption as a religious institution.
Findings Of Fact Petitioner, Greater Miami Jewish Cemetery Association, Inc., is a Florida not-for-profit corporation chartered on June 23, 1931, and is an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954. Petitioner is a non-stock membership corporation which has three constituent members, namely, Beth David Congregation of Miami, Florida; Beth El Congregation of Miami Beach, Florida; and Beth Jacob Congregation of Miami Beach, Florida, which synagogues are existing Florida not-for-profit corporations exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. Petitioner maintains and operates two cemeteries in Miami, Dade County, Florida, which are dedicated to burial of members of its constituent member synagogues and other persons of the Hebrew faith, including free burial plots for indigent persons of the Hebrew faith, and, as such, have been classified under the State of Florida Funeral and Cemeteries Act as "church cemeteries." It is a religious obligation of the Hebrew faith to provide for and bury the dead. It is usual for synagogues to maintain cemeteries for their members. No synagogue is located on the premises of Petitioner because some Jews are forbidden to be on the grounds near dead bodies. Accordingly, Jewish cemeteries do not have synagogues on the premises, and, conversely, synagogues do not have cemeteries on their premises, as some churches do. Petitioner does have, however, a room or chapel area where religious services are conducted by Petitioner's constituent members, the three synagogues. Those religious services and activities conducted there include burial services, services on religious holy days, and memorial services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's application for a consumer certificate of exemption. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Max R. Silver, Esquire Silver & Silver 150 Southeast Second Avenue, Suite 500 Miami, Florida 33131 William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida 32301 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399
The Issue The issue in this proceeding is whether Respondent, Department of Military Affairs acted arbitrarily or capriciously when it awarded RFP-DMA-39 to Intervenor, Southeastern Archeological Research, Inc.
Findings Of Fact DMA is a state agency. However, it is required to comply with Army regulations pertaining to cultural resource management because of its federal alignment with the United States Army. Army Regulation 200-4 (AR 200-4) specifies Army policy for cultural resources management. DMA is required by AR-200-4 to develop and implement an Integrated Cultural Resource Management Plan (ICRMP). An ICRMP is an internal compliance and management tool that attempts to integrate the entirety of the cultural resources program with DMA’s ongoing mission activities. Prior to 2002, DMA had developed an ICRMP. The ICRMP developed by DMA was an extensive multi-part document outlining a five-year plan for DMA’s cultural resource preservation activities. The ICRMP set forth standard operating procedures for all the DMA’s cultural resource surveys. The ICRMP also identified past work completed on behalf of DMA which had been performed by SEARCH or work that was in progress that was being performed by SEARCH. The statements referencing SEARCH in the ICRMP do not indicate that SEARCH would be promised future work and do not demonstrate any bias by DMA in favor of SEARCH. Cultural resource surveys are required by the National Historic Preservation Act when federal funds are spent on any construction project. Such surveys are reviewed by each state’s historic preservation officer for use in that state's compliance with the various historic preservation acts, including the National Historic Preservation Act and the Interior Secretary's rules promulgated thereunder. A cultural resource survey is an examination of a particular area of land or a particular structure for evidence of significant prehistoric or historic activities or items, potential archaeological sites, the location of such activities or sites and an inventory of any such prehistoric or historic areas or items which are found. A cultural resource survey generally includes a review of archeological or historic documentation and information, preparation of archeological, environmental and historical overviews of a given project area, completion of a field study both above and below ground of the project area, mapping of the project area and a final report detailing the results of the survey. In part, the field study involves people walking over an area looking for signs of prehistoric or historic activity, digging multiple holes in an area looking for signs of pre- historic or historic activity, sifting the soil to discover evidence of any prehistoric or historic activity and documenting any information relevant to an area. The intensity of the search, such as the spacing of the holes, initially depends on the information gained through the review of archeological or historic documentation and information regarding the area being surveyed and later on any prehistoric or historic evidence found in a given area. Areas where prehistoric or historic evidence is found or thought likely to be found are more intensely examined. The decision to intensify the examination of an area is made by the person who supervises the study or supervises the field workers. That supervisor, depending on the circumstances and distances involved, may or may not be present at the actual survey site. There is no statute or rule which requires such a decision-maker to be present at the survey site. In late, 2002, DMA began to develop and draft the criteria for a request for proposal for cultural resource surveys of DMA's property made necessary by the ICRMP. The RFP was prepared by DMA’s Construction and Facility Management Office’s (CFMO) Environmental and Cultural Resource Management staff. Developing a request for proposal involving cultural resource surveys was new to CFMO staff. Therefore, at the suggestion of SEARCH who was then conducting a cultural resource survey for DMA, CFMO staff obtained a RFP for cultural resource surveys used by the Florida Department of Transportation. The Department of Transportation's RFP was used as a template for the DMA RFP. The RFP developed by DMA, stated, in relevant part: General The Department will determine whether the Contractor is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Contractor shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Qualifications of Key Personnel Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Cultural Resource Manager. . . . * * * * 8.2 Responsiveness of Proposals . . . . A responsive proposal is an offer to perform the scope of services called for in the Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. . . . * * * * 8.5 Waivers The Department may waive minor informalities or irregularities in proposals where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Contractors. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposal by giving a Contractor an advantage or benefit not enjoyed by other Contractors. * * * * 9.5 Method of Payment . . . Payment shall be made at the contract hourly billing rates . . .. The contract hourly billing rates shall include the costs of salaries, overhead, fringe benefits, travel and operating margin. Payment for expenses shall be made on the basis of actual allowable cost incurred as authorized and approved by the Department. * * * * General Information This section contains instructions on the required format for the proposal. All proposals submitted shall contain two parts and are to be marked as follows: PART I TECHNICAL PROPOSAL NUMBER RFP-DMA-39 . . . PART II PRICE PROPOSAL NUMBER RFP_DMA-39 . . . Technical Proposal (part I) The Contractor must submit . . . copies of the technical proposal which will be divided into the sections described below. . . . Executive Summary The Contractor shall provide an Executive Summary to be written in non-technical language to summarize the Contractor's overall capabilities and approaches for accomplishing the services herein. . . . Contractor's Management Plan The Contractor shall provide a management plan, which describes administration, management and key personnel. Administration and Management The Contractor should include a description of the organizational structure and management style established and the methodology to be used to control costs, services reliability . . . Identification of Key Personnel The contractor should provide the names of key personnel . . ., as well as a resume for each individual proposed and a description of the functions and responsibilities of each key person relative to the task to be performed. . . . Contractor's Technical Plan The Contractor shall provide a technical plan, which explains technical approach and facility capabilities. * * * * 18.1 Evaluation Process A Selection Committee, . . ., will be established to review and evaluate each proposal. The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. . . . . . . The Committee will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . The Procurement Office will open Price Proposals . . . The Procurement Office . . . will review and evaluate the price proposals and prepare a summary of its price evaluation. . . . During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. * * * * 18.3 Criteria for Evaluation Proposals will be evaluated in accordance with the criteria detailed below. A. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Contractor's Executive Summary, Management Plan, Technical Plan, example of work and Work Plan for understanding of the project, qualifications, approach and capabilities, to assure a quality product. . . . Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. . . . Award will be based on the total price for the five-year period. . . . EXHIBIT "A"CULTURAL RESOURCES ASSESSMENT SERVICES * * * * 4. PERSONNEL STANDARDS Personnel will be considered qualified when they meet the minimum criteria for archeologists, historians, architectural historians and other professionals as set forth in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation and 36 CFR Part 61. Resumes of the Principal of the Firm, Principal Investigator, other supervisory personnel, and consultants documenting their qualifications to conduct work in their stated area of expertise must accompany the contract proposal. . . . The proposed participation of the above individuals in the Department projects is subject to approval by the Cultural Resource Project Manager . . . based on their meeting the minimum qualifications for such work as stated in the above mentioned guidelines and based on a review of their work history. . . . The firm(s) personnel performing the services must be a member of the Register of Professional Archeologists and meets the Secretary of Interiors' "Standards and Guidelines for Archeology and Historic Preservation" (36 CFR Part 800 Appendix C). . . . * * * * 8. METHOD OF COMPENSATION . . . The Lump Sum payment shall be made at the contract hourly billing rates . . . The contract hourly billing rates shall include the costs of salaries, overhead, fringe benefits, travel and operating margin. Payment for expenses shall be made on the basis of actual allowable cost incurred as authorized and approved by the Department. These expenses shall be approved in advance as part of the project. Out-of pocket expenses include incidental costs for printing, materials. Expendable equipment, equipment rental, long distance telephone calls, tolls, etc. A detailed list must be prior approved in order to receive reimbursement. All other costs shall be included in the Contractor's hourly rate. . . . The hourly billing rate or unit rate described in the RFP was based on the hourly rate proposed by the contractor in its response to the RFP. Rates were given for specified categories of personnel over a five-year period beginning in 2003 and ending in 2008. The categories of personnel listed in the RFP were for Principal of the Firm, Principal Investigator, Project Archeologist, Archeological Technician, Senior Historian, Historical Technician, Laboratory Supervisor, Laboratory Technician, Graphics, Clerical, Geographical Information Systems Technician (GIS) and Others. Other than the titles given the various categories of personnel, each of the categories for which prices were sought was undefined in the RFP. As indicated earlier, the rates proposed by the contractors were to include various areas of costs such as salaries, overhead, fringe benefits, etc. However, the language of the RFP referencing the various items of costs to be included in these rates did not mean that the firms actual costs, such as the actual salary for the principal of the firm, be included in the billing rate, but only that the amount proposed would represent all such costs so that the contractor could not later claim such costs as reimbursable expenses. In short, the rate proposed for the hourly billing rate was the amount the contractor would charge DMA for the performance of the work or service generally associated with a particular category of personnel. It was within the contractor's discretion whether one of its employees would fulfill more than one of the above- listed categories or otherwise divide the work required under the contract within its organization. It was also within the contractor's discretion to pay its personnel amounts different from the amounts listed for the various categories of personnel. Therefore, SEARCH’s ability to pay the minimum wage to a particular employee or comply with the federal fair labor law is not related to the amount a contractor proposes to charge DMA for a given service. In relation to the employees of a contractor, the RFP required that the resumes of key personnel showing that personnel's qualifications to participate in a cultural resource survey be included in the contractor's response. The RFP did not require that resumes be provided in a certain form or as a separate document. Therefore, a contractor's response to the RFP could comply with the resume requirement by supplying its key personnel's qualifications or experience to perform that personnel's contribution to creating a cultural resource survey in the text of its response to the RFP. Additionally, the RFP stated that unspecified personnel would be considered qualified when they meet the Secretary of Interiors Standards and Guidelines. The Secretary of Interiors Standards and Guidelines, state in relevant part, as follows: Professional Qualification Standards . . . The qualifications define minimum education and experience required to perform identification, evaluation, registration and treatment activities. . . . History The minimum professional qualifications in history are a graduate degree in history or closely related field; or a bachelor's degree in history or closely related field plus one of the following: At least two years of full-time experience in research, writing, teaching, interpretation or other demonstrable professional activity with an academic institution, historic organization or agency, museum, or other professional institution; or Substantial contribution through research and publication to the body of scholarly knowledge in the field of history. Archeology The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology or closely related field plus: At least one year of full-time professional experience or equivalent specialized training in archeological research, administration or management; At least four months of supervised field and analytic experience in general North American archeology; and Demonstrated ability to carry research to completion. In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the prehistoric period. A professional in historic archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the historic period. * * * * As written, these guidelines are not mandatory and do not apply to contractors. They are relevant to various federal agencies, the State Historic Preservation Officer and other governmental historic preservation officers. The RFP did require these guidelines to be met. However, no official Department of Interior interpretation of the Guidelines was offered into evidence. No other agency's interpretation of the guidelines was offered into evidence. The guidelines only apply to people who identify or evaluate historic or prehistoric properties and people who actually, preserve, protect, restore, reconstruct or rehabilitate historic or prehistoric property. They do not have any qualifications for laboratory work or personnel. None of the guidelines address or define the level of supervision or the category of personnel to which the guidelines apply. The particular title of the person employed by a contractor ultimately responsible for the identification, evaluation or treatment of historic or prehistoric property is not addressed in these regulations. A particular method of performing a field study is not addressed in these regulations. Therefore, depending on the contractor, the person required to comply with these regulations may be either in the field, in the office, or on-call. The evidence showed that the location of such an employee is more a matter of a firm’s philosophical approach to cultural surveys and potential travel times to a survey site. In this case, SEARCH and Goodwin personnel meet these guidelines since both have had cultural resource survey work and reports accepted by the various agencies responsible for the implementation of the various federal and state laws on historic and cultural preservation, including the Florida's State Historic Preservation Officer. The RFP also contained the criteria and method by which bids would be scored. The technical proposal could receive up to 100 points divided into 45 points for the management plan, 45 points for the technical plan and 10 points for the executive summary. Part of the review of the technical proposal concerned the potential contractor's ability to quickly respond to discoveries made at the survey site, changing survey site conditions and requests or inquiries from DMA. Discoveries at a site can require quick response from a contractor. For example, the unearthing of human remains requires the immediate cessation of work and requires an emergency response plan to go into effect. Price was scored separate from the technical proposal with the lowest priced proposal receiving 25 points. Importantly, price and costs were not the same in the RFP. Price is the total amount that the contractor proposed to charge DMA for its services, irrespective of the actual costs incurred by the contractor for provision of those services. On the other hand, the contractor's efficiency in providing the contract services, profit potential and ability to control its costs were to be considered during the review of the technical proposal. Therefore, in addition to response time, the location of the contractor relative to any potential project site and the potential contractor's location relative to its ability to control potential costs for travel and ability to respond quickly to conditions at the survey site were appropriate factors to be considered during review of the technical proposals. Such a review was appropriate especially since travel costs were not separately reimbursable expenses under the contract. Ms. Maitland was the employee in CFMO primarily responsible for drafting the RFP; her office is directly in front of Mr. Adams’ office. Mr. Adams is the director of CFMO. At times prior to the issuance of the RFP, Ms. Maitland overheard Mr. Adams discuss the RFP with Mr. Pochurek, an employee of SEARCH, on several occasions. No detail about these discussions was offered into evidence. However, simply discussing a developing RFP with a potential contractor is not illegal and does not, by itself, demonstrate bias by DMA towards SEARCH. Nor did any other evidence demonstrate such a bias. On November 19, 2002, three days before the RFP was issued, Mr. Adams requested Ms. Maitland to participate in a speaker phone conversation to explain recent internal changes in the RFP. The evidence did not demonstrate that any competitive advantage resulted from three days of advanced knowledge about the RFP especially since responses to the RFP were not due until February 20, 2003. Additionally, any potential contractor had the right and ability to ask questions regarding the RFP until January 30, 2003. On November 22, 2002, DMA published RFP DMA-39, asking contractors to submit proposals for multi-project cultural resource surveys on DMA property. Goodwin, SEARCH and a third firm not involved here, submitted responses to the RFP. After the issuance of the RFP, Mr. Adams had a conversation with SEARCH about how they could improve their work and reports in the future. Such a critique is a legitimate role for the director of CFMO to perform with any contractor who had performed or was performing work for DMA. Neither the meeting nor the critique demonstrated bias on the part of DMA. In December, 2002, a meeting was arranged at Camp Blanding in order for Marcus Craig, the newly hired person at DMA responsible for GIS data, to discuss with SEARCH what type of GIS information was available or could be developed from the data SEARCH had obtained on a cultural resource survey it had performed under the "Metroplex contract." GIS information is a computational representation and database of a survey site, showing the location of any cultural resources found on a site, as well as any other information relevant to the site. The Metroplex contract did not require GIS data. However, part of Mr. Craig’s job was to gather as much information about the Department’s armories and property as possible. He participated in the meeting at Camp Blanding in order to ask about information on regions that SEARCH had already surveyed in the past. Mr. Craig sought to gather the most basic data that they had collected. He needed to ascertain the availability or existence of the GIS information to fulfill the duties of his job with DMA. The meeting at Camp Blanding was not related to the pending, un-issued RFP. The RFP was not discussed. Moreover, the information sought or discussed during the meeting relating to GIS data did not relate to the GIS data that was eventually required under the RFP. The evidence did not demonstrate any bias on the part of DMA. Moreover, there was nothing said at that meeting which would give SEARCH personnel an advantage in submitting a response to the RFP. On January 23, 2003, DMA conducted a pre-proposal conference. Anybody who was interested in the project could ask questions about the RFP and its terms. All relevant staff from the DMA, including a GIS specialist, were present and available to answer questions about the RFP. All prospective contractors were afforded sufficient time to ask questions and receive responses. No one challenged the specifications contained in the RFP. No one asked for clarification about the definition of the categories of personnel contained in the RFP. No one challenged the scoring criteria in the RFP. After the pre-bid meeting, Mr. Pochurek, an employee of SEARCH, faxed Mr. Adams printed copies of two web pages for Goodwin and Pan American, another company that had attended the pre-proposal conference. The web pages were readily available to the public. Provision of such information by one of the potential contractors under an RFP does not show bias on the part of DMA or that SEARCH was treated more favorably than any other contractor who had yet to respond to the RFP. On February 7, 2003, DMA issued Addendum 1 to the RFP. Addendum 1, in relevant part: 1) deleted the requirement to include information on the contractor's ability to conduct underwater archeology, 2) clarified that all travel costs, including costs for motels, meals, vehicle rentals, airline tickets, etc. were to be included in the hourly rates proposed by the contractor in its proposal, 3) added reimbursement of a 50.00 dollar a day allotment for costs not covered under the RFP, and 4) added more specific requirements for Geographical Information Systems (GIS) data in the reports submitted by the contractor. The addendum to the RFP was received in enough time to allow all bidders to adequately respond. Goodwin is one of the premier cultural research management firms in the country. The company engages in all phases of terrestrial and underwater archaeology. Its main office is in New Orleans, Louisiana. However, as projects require, it will maintain a satellite office closer to a given project site. In this case, Goodwin's satellite office would be located in Tallahassee, Florida, approximately 3 to 4 hours away from any site which may be covered by the RFP. Goodwin has worked for both private and public entities; over 150 military installations and 50 national guard installations. Goodwin has done work at Fort Polk, Fort Benning, and Fort Stewart, and several districts of the Army Corps of Engineers. In addition, Goodwin has conducted a survey for Southern Natural Gas across North Florida and Florida Gas Transmission Co. All of Goodwin's cultural resource survey reports submitted to the Florida Historic Preservation Officer have been approved by that office. SEARCH specializes in performing cultural and historic resource surveys. SEARCH is located in Gainesville, Florida. Its office is located approximately an hour away from any potential sites covered by the RFP. SEARCH performs between 100 and 160 cultural resource projects per year. SEARCH has performed Phase I, II and III surveys throughout Florida, the southeastern United States and the West Indies. SEARCH has completed cultural resource surveys for the Florida National Guard and currently has a contract with the Florida Department of Transportation (DOT), District III for a cultural resource survey on a DOT highway project. During SEARCH’s previous work for the DMA, DMA never experienced delay based on a failure of SEARCH to comply with state or federal law, or Army regulations. All of SEARCH’s cultural resource survey reports submitted to the Florida State Historic Preservation Officer have been accepted by that office. SEARCH is not a large company. It maintains a staff of only a few professionals. SEARCH has ranged between 4 and 18 employees depending on how much field work it was conducting. SEARCH’s archeologists are organized into the following positions: Principal of the Firm, Principal Investigators, Project Archaeologists, and Field Technicians. In addition, SEARCH operates a laboratory where artifacts are indexed, employs a specialist in GIS, and employs various administrative staff. The cultural resource surveys prepared by SEARCH are primarily authored by the Principal Investigator assigned to a project. Others may contribute to the report but, ultimately, the Principal Investigator is responsible for that survey, with the principal of the firm performing a quality assurance role. SEARCH was founded by Dr. Anne V. Stokes in 1993; and she is the Principal of the Firm. Dr. Stokes holds a Ph.D. in anthropology with a specialty in archaeology and is a member of the Register of Professional Archaeologists (RPA). She is the person responsible for the quality of the cultural resource survey, and she meets the Interior Secretary's professional standards. SEARCH’s other two archaeologists are Drs. Carlson and Austin. They hold Ph.D.s in archaeology and are members of the RPA. They are the Principal Investigators for SEARCH in a cultural resource survey performed by it. Both meet the Secretary of the Interior’s Guidelines for archaeologists. Geoffrey Mohlman, holds a master's degree in an appropriate field for his specialty and role in a cultural resource survey, history and architectural history, and has years of experience in research and writing. Mr. Mohlman is responsible for all historical and architectural historical work performed at SEARCH and he meets the Interior Secretary’s Guidelines. SEARCH does not currently employ a “historical technician” or a “junior historian.” SEARCH’s proposal included the resumes of the Principal of its Firm, each of its Principal investigators and other supervisory personnel it concluded were responsible for and supervised the validity of the information that would be contained in the cultural resource survey. The RFP did not require additional resumes to be submitted and was open to interpretation as to what resumes should be included as part of a contractor's response to the RFP. SEARCH also hires personnel in a position it titles “project archaeologists.” Currently, SEARCH’s project archaeologists are Mr. William Morgan and Mr. James Pochurek. In SEARCH’s organization, a project archaeologist makes certain that field crews arrive where they are assigned, makes hotel arrangements, supplies per diem payments, and may participate in some digging. While described as supervisor's in SEARCH's response to the RFP, both employees function more as co- ordinators for logistical matters, such as communication to the archaeologists responsible for the archeological decisions of the project. Both Mr. Morgan and Mr. Pochurek have backgrounds in archaeology, but they do not possess a master’s degree in either archaeology or anthropology. Both are qualified to perform the functions of their positions and have successfully performed such functions in the past. They are both supervised by the Principal Investigator of the project. They are not required to comply with the Interior Secretary's Guidelines. SEARCH did not include a formal resume for Mr. Morgan or Mr. Pochurek; however, both employee's qualifications were sufficiently outlined in SEARCH's response to the RFP to enable a person reviewing the RFP to determine the employee's qualifications and work experience. SEARCH also employs field technicians, otherwise referred to as field archaeologists. SEARCH is not large enough to divide its field archaeologists into various levels of pay grades. Though not a job requirement and though not all do, many of SEARCH’s field technicians hold master's degrees in areas relevant to their work, possess years of experience and meet the Secretary of the Interior’s Guidelines. SEARCH also utilizes a lab which contains a supervisor and two lab technicians. Lab technicians and field technicians are approximately the same, and neither are required to have a master’s level of training in order to get hired at SEARCH. Nevertheless, John Endonino, SEARCH’s laboratory supervisor, has recently received his master's degree in anthropology and already possesses years of experience. Additionally, Asa Randall, a SEARCH laboratory technician, holds a master's degree and possesses years of experience. Both meet the Secretary’s Guidelines to the extent they may apply to laboratory work. Finally, SEARCH employs a specific GIS professional. Recently, that professional, Lori Collins, announced her resignation. However, SEARCH has every confidence that it will locate her replacement without difficulty. SEARCH has no dedicated graphics personnel; that job is performed by other personnel employed by SEARCH or by personnel performing duties associated with one of the other categories of personnel listed in the RFP. In contrast to SEARCH’s size, Goodwin has approximately 100 employees. Goodwin’s organizational structure is more complex than SEARCH’s. Goodwin’s Principal of the Firm is Dr. R. Christopher Goodwin. However, Dr. Goodwin is not a member of the Register of Professional Archaeologists (RPA). Goodwin also has Principal Investigators. However, some of the Principal Investigators identified as available for this project in Goodwin’s response to the RFP were not members of RPA. Although Goodwin's proposal indicates that only personnel meeting the Interior Secretary's Guidelines would supervise the project, the Interior Secretary's Guidelines do not require RPA affiliation. It remains unclear, whether non- RPA investigators would supervise the project since the RFP required personnel listed in a contractor's response to be dedicated for the area for which the employee was listed. Because of its size and structure, Goodwin also employs “project managers.” SEARCH does not have “project managers.” In SEARCH’s hierarchy, a Principal Investigator performs the duties assigned to a “project manager” as that term is used by Goodwin. Both firms require this position to be filled by someone with Master’s level training who meets the Secretary of Interior’s Guidelines. Additionally, Goodwin employs “assistant project managers.” An “assistant project manager” is tantamount to a project archeologist at SEARCH. Neither firm requires that this position be filled with employees possessing a master’s degree, though some of each firms employees at this level have received that level of training. Both firms’ employees possess some “supervisory” and oversight capacity over lower level employees. However, the Secretary’s guidelines do not apply to this level of employee since such personnel are supervised by someone who meets the Secretary of the Interior’s Guidelines. The language of the RFP does not require that the Interior Secretary’s Guidelines apply to this level of personnel. Goodwin segregates its field archeologists into three grades. None of these positions requires a master’s degree in Goodwin’s hierarchy. However, like SEARCH, Goodwin’s field archaeologists, and indeed their assistant project archaeologists, participate in excavating and identifying artifacts. All are supervised by a person who does meet the Interior Secretary's professional standards. In short, not every employee in an archaeology firm must meet the Secretary of the Interior’s Guidelines in order to satisfy the requirement of the RFP. All the parties agree that only certain “supervisory” personnel must meet the Guidelines. The Guidelines do not address this issue and therefore; the personnel which must comply with the Guidelines are left up to the individual contractor. At both Goodwin and at SEARCH, the Principal Investigator ultimately signs and takes responsibility for the work reported in any cultural resource survey. As noted above, both companies employ professional archeologists who are not required to meet the Guidelines, but who possess limited supervisory roles. Goodwin defines this position as “assistant project manager.” SEARCH defines the position as “project archeologist.” SEARCH and Goodwin may call their positions by different names, but the qualifications are similar. Employees in these positions are involved in identifying and excavating artifacts. For both companies, so long as the employees in these positions are themselves supervised by an individual who meets the Guidelines, work may be performed satisfactorily. Clearly both firms have the requisite personnel to perform cultural resource surveys under the RFP and operate in a manner that meets the Interior Secretary's guidelines. The Department’s review of the responses to the RFP was segregated into three stages. First, the State’s Quartermasters’ Office reviewed all submissions in order to determine whether certain mandatory items were included. Second, if a bid contained all the mandatory items, then its narrative sections were forwarded to an evaluation committee where the proposal’s executive summary, management plan and technical plan could be scored. Finally, the State Quartermaster’s Office opened and scored each price proposal. Ms. Peggy Evans was the State Quartermaster’s Office Purchasing Director. In that position, she was responsible for state purchasing and contracting. Ms Evans was involved in the preparation of the RFP and helped to assure that mandatory items required in state contracts were required in the RFP. Ms. Evans included the mandatory requirements made necessary by state law. The mandatory requirements within the RFP included registration by a certain deadline, attendance at the mandatory pre-bid meeting, and the submission of technical and price proposals on time. Additionally, each bid must have included certain mandatory forms and signatures, such as the Drug Free Workplace Certification or a signed acknowledgement of the RFP’s Addendum. Goodwin and SEARCH, were both responsive to the mandatory requirements of the RFP. The evaluation committee was responsible for review of the narrative portions of the responses to the RFP. The narrative portions included the management and technical plans submitted by the respondents. The persons originally chosen to sit on the evaluation committee were Mike Adams, Elizabeth Maitland, Major Dwayne Jarriel, and Major Mark Widener. Because of other duties, Major Widener did not participate in the evaluation committee review. Marcus Craig was then appointed to the evaluation committee because of his expertise in GIS. All of the committee members met the qualification for experience in fields related to contracting and the RFP. All were qualified to sit on the review committee. Mike Adams, Elizabeth Maitland, Marcus Craig, and Dwayne Jarriel met at approximately 9:00 a.m. in a conference room at DMA. They each had a copy of the three responses to the RFP and the evaluation sheets. Most of the evaluators were sufficiently familiar with the RFP before arriving at the evaluation. Mr. Craig reviewed the RFP before attending the evaluation. Ms. Maitland assisted in writing most of the technical and management plan, and Mr. Adams oversaw her work. Major Jarriel was the least prepared regarding the specifics of the RFP, but such unpreparedness did not interfere with his ability to review the proposals from a contracting point of view. In addition, on the day of the evaluation, each evaluator had two pages of the RFP related to scoring, pages 18 and 19. A copy of the RFP was also in the room. In this case, it was immaterial that the members of the evaluation committee did not review the proposals for specific compliance with the RFP's specifications regarding the Interior Secretary's Guidelines or inclusion of resumes since both parties met those specifications. In general, all evaluators collectively agreed that each of the contractors who submitted a response to the RFP was qualified to do the work. The evaluators read each of the proposals quietly, for approximately four hours. Occasionally, one evaluator or another would ask a question. However, for the most part, this review of the bids was conducted in silence and without an opportunity for one evaluator to influence another. At the conclusion of this review, the evaluators convened for a brief, approximately five-minute discussion of the advantages and disadvantages of each of the responses to the RFP. However, before that discussion took place, all of the evaluators had already ranked the proposals in their own mind. All of the evaluators listened to the questions and opinions voiced by their peers. Nothing said during that discussion influenced any evaluator to change his or her decision. Moreover, no evaluator divulged the point score he or she had assigned to any bid; thus, there was no opportunity for collusion among the evaluators. Three of the four evaluators selected SEARCH’s proposal as the superior submission. Elizabeth Maitland did not select SEARCH’s proposal as superior. Instead, she selected Goodwin’s as the best proposal. Ms. Maitland gave Goodwin a score of 100. Not because they were perfect, but because she thought they were the best. She gave SEARCH an 80. Ms. Maitland favored Goodwin for its experience with the Department of Defense. Major Jarriel recognized that the RFP was a road map which outlines what the agency was looking for. He admits that he never looked at the RFP until after he had completed his evaluation and quite candidly conceded that when he evaluated the three proposals, he didn’t exactly know what the Agency was looking for. However, his knowledge about the qualities a contractor must demonstrate in order to successfully work with DMA was sufficient to allow him to honestly evaluate the responses to the RFP. Major Jarriel felt SEARCH's management and technical plans were superior in both presentation and clarity. He also scored SEARCH higher because it was located in Gainesville, Florida, and in his experience that would make them more responsive, more efficient at controlling costs and therefore better able to perform the contract. Such factors were within the review criteria contained in the RFP. He particularly focused on the fact that SEARCH’s proposal emphasized designing systems to meet DMA’s desires and the level of explanation of various survey concepts in its proposal. Major Jarriel reviewed the executive summary and management plan and glanced through the technical plan. He looked at the proposal from an overall standpoint, not from any specific individual criterion. Major Jarriel, in part based on the opinion of Mr. Craig, gave SEARCH a higher score because he thought that its GIS format and capabilities would better meet DMA needs. However, reliance on a GIS expert’s opinion is neither arbitrary nor capricious and is reasonable for the committee members to do. Mr. Adams felt a firm's experience working and consulting with Native Americans and the National Guard were important factors. He also felt a firm’s presentation on its GIS capabilities was an important factor. He felt Goodwin’s response was weak in the area of Native American consultations. Mr. Adams scored SEARCH higher because they had experience working with the Florida National Guard and Native Americans. Review and knowledge about the ICRMP was also required in the RFP. Mr. Adams felt SEARCH was better in demonstrating that knowledge. There was no evidence to demonstrate that Mr. Adams' scores did not reflect his true assessment of the parties’ responses to the RFP. Mr. Craig was mainly, but not completely, concerned with a response's "GIS section." SEARCH’s response devoted almost 5 pages explaining the importance of GIS and its willingness to help design a GIS system that would best meet the goals of the Department. In Mr. Craig’s mind, SEARCH’s technical proposal was far superior to Goodwin’s. They provided more than the minimum amount of information regarding GIS and demonstrated that they would make efforts to ensure that the Department’s needs were satisfied. He also scored SEARCH’s proposal higher because they were going to use the same software that he used at DMA. Preference for the utilization of the same software is a legitimate consideration since it eliminates any potential compatibility issues with DMA software which sometimes arise between newer and older versions of software which have had add-ons to upgrade the older version. Mr. Craig also thought SEARCH would be more cost effective and responsive because it was a Florida-based firm. In scoring Goodwin lower than SEARCH on the technical proposal, Mr. Craig took into consideration his opinion that Goodwin’s ownership of the underwater sensing equipment would increase its overhead so that it would not be as cost effective as SEARCH and had provided unnecessary information on such underwater capabilities in their response. Mr. Craig also examined the overall way that responses were written and any indications of each bidder’s willingness to satisfy the needs of the Department. After his evaluation, Mr. Craig concluded that the Goodwin proposal was not as responsive to the Department’s needs as was the proposal submitted by SEARCH. Mr. Craig, Mr. Adams, and Major Jarriel, noted the Gainesville offices of SEARCH are significantly closer than the functional Tallahassee office of Goodwin. Camp Blanding is less than an hour away from Gainesville and, at over 73,000 acres, constitutes the vast majority of land holdings by DMA. Additionally, few of the Department’s armories are located in the Panhandle. Most are located south of Camp Blanding, closer to Gainesville than Tallahassee or elsewhere. Moreover, it was not certain that Goodwin would utilize employees from its Tallahassee office. Upon reviewing resumes during his evaluation, Mr. Adams noted that Goodwin had no employees, other than a receptionist, working in its Tallahassee office. They all worked in New Orleans or in Washington, D.C. Indeed, the telephones in the Tallahassee office forwarded to Goodwin’s New Orleans office. Conversely, the SEARCH proposal clearly indicated that all personnel would be located in Gainesville, Florida. The evidence did not demonstrate that any of the evaluators acted arbitrarily, capriciously or failed to utilize the specifications of the RFP. Once the executive summaries, management plans and technical plans of all responsive contractors were scored by the Evaluation Committee, Peggy Evans and her assistant opened the price proposals of the parties. None of the evaluators saw any of the price proposals prior to their scoring. This procedure assured that none of the technical scores would be influenced by the pricing of the bidders. Ms. Evans, upon calculating the total price proposed by each bidder, determined that SEARCH had submitted the lowest bid, by a large margin. Pursuant to the RFP, a total of 25 points was available for the price component of scoring. Because SEARCH submitted the lowest bid, it was awarded the 25 points for pricing. Other bidders received a portion of the 25 points based on the relationship of that contractor's price to SEARCH’s low bid. SEARCH scored the highest for both portions of the RFP and was awarded the RFP contract. There was no convincing evidence that SEARCH’s bid was unbalanced or that the prices it quoted were not intended to reflect what it would charge for the services related to that price. Moreover, DMA has no regulation requiring a bid to be balanced. Federal acquisition regulations or standards do not apply. Without such a regulation and since “balance” is not required in the RFP, DMA has no authority to reject the apparent low bid as not responsive to the RFP. Moreover, the evidence did not demonstrate that DMA's decision was arbitrary, capricious, or in violation of its statutes, rules or RFP specifications. Therefore, DMA’s decision to award the RFP to SEARCH should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED that the Department enter a final order awarding the contract to SEARCH. DONE AND ENTERED this 3rd day of October, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2003. COPIES FURNISHED: John E. Daniel, Esquire Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, Northwest Washington, DC 20004 Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Post Office Box 1838 Tallahassee, Florida 32302 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084 Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Winter Park Memorial Hospital is a community-oriented, non- profit general hospital located on the eastern side of the City of Winter Park, Florida. The primary service area for this hospital is the City of Winter Park and those areas to the north and east of the City, namely Maitland and Oveido. Approximately seventy percent (70 percent) of petitioner's patients reside in these areas. Its present capacity is 261 beds, but a construction program is underway which will add an additional 40 beds. Petitioner has an active medical staff of 160 to 175 physicians representing all specialties, with the exception of psychiatry. With this exception, petitioner is a full service hospital with an active emergency room serving over 2,000 patients per month. Approximately thirty percent (30 percent) of its patients are Medicare recipients. The petitioner, although contemplating the purchase of a scanner as early as 1972, submitted its formal certificate of need application and request for approval of a $700,000.00 capital expenditure proposal in September, 1977. At that time, as well as at the time of the hearing, there were three existing scanning services in the area. These are located in the metropolitan-Orlando area to the south of petitioner's facility. Florida Hospital, located approximately five miles from petitioner, has two units -- an EMI head scanner and a General Electric whole-body scanner. The third scanner, a whole-body unit, is located some fifteen miles south of petitioner's facility at the Orlando Regional Medical Center, Orange Memorial Division. The Health Systems Agency of East Central Florida, Inc. reviewed petitioner's application and recommended denial to the respondent Office of Community Medical Facilities. This recommendation was based upon the Board's and staff's conclusion that there was no need for an additional scanner at this time inasmuch as existing scanners in the area were not operating at near full capacity. The Board further found that patients would not experience serious problems in obtaining inpatient care in the absence of the proposed new service. It should be noted that the Health Systems Agency staff report took exception to the State's criteria of indicating a need for additional scanners. The State criteria is that additional CAT scanners will be approved only when existing scanners perform 2,400 scans during the preceding twelve months. The staff report indicates that the HSA's regional board of directors felt that no additional scanners should become operational until existing scanners have reached a utilization of 4,500 scans per year. Although statements were made in the staff report that the staff did not have figures of the number of scans performed by each of the three existing scanners during the preceding twelve month period, the HSA found and concluded that the existing scanners were not operating or performing at full capacity. The respondent's medical facilities specialist, Jimmie R. Carter, prepared a staff analysis on petitioner's application. Using the HSA's figures and projecting the actual data forward for the scanners which had not been operational for the whole preceding twelve-month period, he found that two of the three existing scanners were operating below the 2,400 state minimum figure. He further took into consideration the recent operation of Transcan, a privately owned mobile CAT scanner. Respondent's Administrator, Mr. Art Forehand, notified petitioner in early January, 1978, that its $700,000.00 capital expenditure proposal was not favorably considered because it was not consistent with the State criteria. Specifically, Mr. Forehand found that the proposal did not meet the requirement which states "The addition of new CAT Scanners will be approved only when it is documented that the number of scans per existing scanner in the documented service area exceeded 2,400 during the preceding 12 months." Exhibits were admitted into evidence by stipulation which illustrate the number of scans performed by the existing units for the twelve months preceding the May 24, 1978, hearing in this cause. These figures were obviously not available to the respondent and the HSA when they reviewed petitioner's application. The exhibits indicate that for the twelve month period of May, 1977, through April, 1978, the whole-body scanner at Orange Memorial performed 4,724 scans. (Exhibit 9). The whole-body scanner at Florida Hospital performed a total of 3,115 procedures over this same period of time. (Exhibit 11). The head scanner at Florida Hospital performed 2,345 procedures from May of 1977 through April of 1978. (Exhibit 10) When computing these figures out to averages per month for the past twelve months, the past six months and the past three months, it can be seen that a significant increase in the utilization of this equipment is occurring. (Exhibit 12). Testimony from Clarence Heinlein, technical director of Florida Hospital who supervises the CAT scanning units there, indicates that the head unit has been in operation for about two years, and the body unit has been operational since April of 1977. In March, April and May of 1977, the head scanner at Florida Hospital was not functioning well, and the number of procedures performed was very low. Mr. Heinlein updated the figures appearing on Exhibit 10 to include 131 procedures performed on the head scanner from May 1, 1978 to May 19, 1978. Thus, if one were to compute the number of procedures performed from June 1, 1977 to May 19, 1978, a little less than a twelve-month period, it would total at 2,441 procedures. The head unit at Florida Hospital is a first generation unit, taking approximately thirty minutes to warm up and sixty seconds per slice scan time. This unit is operated eight hours per day. The whole body unit only takes 4.8 seconds per slice and warms up in two to three minutes. For these reasons, the first generation head scanner is less suitable for children, elderly patients, psychiatric patients and emergency patients than the newer, whole-body unit which can also perform head scans. The two units at Florida Hospital are thus used cooperatively to compensate for down time and uncooperative patients. Petitioner presently has an agreement with Florida Hospital for the sharing of their scanners. Approximately eighty-one percent (81 percent) of petitioner's physicians have staff privileges at Florida Hospital and petitioner is presently referring about fifteen of its inpatients every month to Florida Hospital for CAT scans. Travel time between the two institutions ranges from fifteen to thirty minutes, depending upon the traffic. Although exact figures were not demonstrated, the testimony indicates that a transfer of an inpatient from petitioner's facility to Florida Hospital for a scan does result in added expenses to the patient, and the possibility of endangering the transferred patient's life. The added expense is derived from the ambulance charges, spending extra time in the hospital awaiting scheduling and the results of the scan, and the accompaniment of personnel from the petitioner's hospital to the scanning facility. Without speedy and safe diagnostic procedures readily available, the patient's life may be endangered. Also, many patients, because of their physical condition, are incapable of being transported. Without scanning equipment, petitioner's physicians must then employ the more dangerous, invasive and sometimes painful diagnostic techniques. These procedures, such as carotid arteriograms and pneumoencephalograms, often carry significant risks to the patient and require extra time in the hospital. It was Mr. Heinlein's testimony that the two scanning units at Florida Hospital were operating at capacity. He felt that the head scanner had a limited effectiveness and testified that the body scanner had been operating at an average rate of over ten hours per day on a six and a half-day work week. Mr. Heinlein felt that an additional scanner at petitioner's facility would have no adverse impact on Florida Hospital. The loss of revenue from petitioner's patients would be offset by a general increase in the use of the equipment and by not having to operate the equipment on an overtime basis. The nearest facilities with scanning equipment to the north and east of petitioner's facility are located some fifty miles away. Petitioner's witnesses indicated that their scanner, if acquired, would be available to other hospitals in the service area. Petitioner did make an attempt to utilize the services of a commercial mobile scanner which was to be brought to its parking lot in a truck on certain days of each week. Feeling that the service was not satisfactory, petitioner terminated its contract with the mobile unit. The service was late in starting its operation, it was not dependable and it was more expensive than sending a patient to Florida Hospital for a scan. If the weather happened to be inclement on the day the scanner came, the patient's health could suffer. Also, petitioner's physicians were concerned that the mobile unit's equipment might not be as reliable due to the highly sensitive nature of scanning equipment.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner be granted a certificate of need and approval for its capital expenditure proposal in the amount of $700,000.00 to install and operate a CAT scanner at its facility in Winter Park, Florida. Respectfully submitted and entered this 18th day of August, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1978. COPIES FURNISHED: John H. French, Jr. 630 Lewis State Bank Building Tallahassee, Florida 32301 Jon C. Moyle Moyle, Gentry, Jones, Flanigan, and Groner, P.A. 707 North Flagler Drive Post Office Box 388 West Palm Beach, Florida 33402 Eric J. Haugdahl Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32304 Mr. Art Forehand Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32304
The Issue Whether or not Petitioner, James P. Appleman, "willfully" violated Subsections 106.021(3), 106.07(5), and Section 106.1405, Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause; and whether or not Petitioner, James P. Appleman, "knowingly and willfully" violated Subsections 106.19(1)(c) and (d), Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, record of proceedings, and the facts agreed to by the parties in the Joint Pre-hearing Stipulation, the following Findings of Fact are made: In 2000, Petitioner was reelected to the office of State Attorney, Fourteenth Judicial Circuit. Prior to his reelection in 2000, Petitioner had been elected to the same office in 1980, 1984, 1988, 1992, and 1996. Petitioner, on February 1, 1999, signed a Statement of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. During the 2000 campaign, Petitioner made the following purchases using his personal funds in the form of cash, check or charge upon his personal credit card: a. Purchase 1: 7/12/99 Down payment/purchase of vehicle- $525.00 b. Purchase 2: 7/12/99 Purchase of vehicle/tax and title-$602.85 c. Purchase 3: 1/07/00 Bay Pointe Properties-$100.35 d. Purchase 4: 1/13/00 Delchamps Liquors-$58.50 e. Purchase 5: 1/22/00 Delchamps Liquors-$135.10 f. Purchase 6: 1/22/00 Cafe? Thirty A-$144.11 g. Purchase 7: 1/30/00 Pineapple Willy's-$17.45 h. Purchase 8: 5/05/00 Skirt/Jones of New York-$104.00- blouse/Jones of New York-$63.00 i. Purchase 9: 5/09/00 Tie/Dillards-$30.00-tie/Dillards- $40.00-misc. Big & Tall/Dillards- $8.75 j. Purchase 10: 5/23/00 Blazer/Polo Store-$199.99-short sleeve shirt/Polo Store-$39.99- short sleeve shirt/Polo Store- $39.99-short sleeve shirt/Polo Store-$39.99-shorts/Polo Store- $29.99 k. Purchase 11: 5/05/00 Casual bottoms/Brooks Brothers- $34.90-casual bottoms/Brooks Brothers-$34.90 casual bottoms/Brooks Brothers-$34.90 l. Purchase 12: 5/05/00 Shorts/Geoffrey Beene-$24.99- shorts/Geoffrey Beene-$24.99 m. Purchase 13: 5/05/00 Sport coat/Dillards-$195.00 n. Purchase 14: Telephone expense-$23.49 o. Purchase 15: 8/11/00 Tie down/Wal-Mart-$19.96-security chain/Wal-Mart-$19.26 p. Purchase 16: 8/11/00 Trailer hitch ball-$16.99 q. Purchase 17: 8/12/00 Event admission-$60.00 r. Purchase 18: 8/23/00 Liquor purchase/Delchamps-$37.41 s. Purchase 19: 8/30/00 Gas purchase/Shop a Snack-$20.00 t. Purchase 20: 8/30/00 Event admission-$40.00 u. Purchase 21: 8/30/00 Event admission/DEC-$15.00 v. Purchase 22: 8/26/00 Sign charge-$20.64 w. Purchase 23: 8/30/00 Auto insurance charge-$100.00 x. Purchase 24: 9/02/00 Gas purchase/Happy Stores-$34.00 y. Purchase 25: 9/02/00 Campaign staff/meal/food-$140.00 z. Purchase 26: 9/04/00 Ice purchase/Winn Dixie-$6.36 aa. Purchase 27: 9/05/00 Gas purchase/Swifty Store-$25.00 bb. Purchase 28: 9/06/00 Meal purchase/ St. Andrews Seafood House-$27.52 cc. Purchase 29: 9/08/00 Posthole digger-$42.90 dd. Purchase 30: 9/08/00 Lunch for sign crew-$20.14 None of these purchases were individually listed on Petitioner's Campaign Treasurer's Reports. Petitioner was reimbursed for each of the above- referenced expenditures by a check written on the campaign account, which was listed as an expenditure on Petitioner's Campaign Treasurer's Reports filed with the Division of Elections as follows: Date Name and Address of Person Receiving Reimbursement Purpose Amount 07-17-99 Appleman, Jim PO Box 28116 Panama City, FL 32411 02-11-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Vehicle Expenses Reimb. Cmpgn. Expenses $1,127.85 $830.81 06-10-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 08-07-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Expenses Reimburse vehicle & Phone exp. $1,000.00 $400.00 08-30-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 09-08-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimbursement/ Campaign Expense Reimbursement Camp. Expense $670.51 $295.92 On July 18, 2000, a campaign check for $140.99 was written to Winn Dixie. This check was reported on Petitioner's Campaign Treasurer's Report with the purpose listed as being "Campaign Social Supplies." The Winn Dixie purchase included the following items: A cat pan liner. 4 cans of cat food. A box of dryer sheets. A package of kitty litter. f. A jug of laundry detergent. The total cost of these items was $33.88. Petitioner signed all of his Campaign Treasurer's Reports, certifying as to their accuracy. The July 18, 2000, purchases at Winn Dixie were made by Mrs. Appleman, Petitioner's wife, and were a result of an inadvertent error. Immediately realizing that she had purchased personal items with campaign funds, she brought the matter to Petitioner's attention. Petitioner took possession of the Winn Dixie cash register receipt for the purchases; on the receipt he circled the inappropriate purchases with a pen, noted the total amount of inappropriate purchases on the receipt adding his initials, submitted the cash register receipt to his campaign treasurer, and several days later wrote a check reimbursing the campaign for the inappropriate purchases. During the campaign, Petitioner made 30 purchases listed in paragraph 3, supra, with personal funds, i.e., cash, personal check, or personal credit card, for which he provided receipts, and sought and received reimbursement from campaign funds by campaign check. These 30 purchases were not individually reported as expenditures on Campaign Treasurer's Reports during the reporting periods during which the purchases were made, but were reported as reimbursements as reflected in paragraph 4, supra. No evidence was presented that suggested that Purchases 3-7, Purchase 14, Purchases 17-22, or Purchases 24-30 listed in paragraph 3, supra, were not for campaign-related purposes. During the April 1 through June 30, 2000, campaign reporting period, Petitioner purchased 16 items of clothing (listed in paragraph 3, supra, as Purchases 8-13) for which he received reimbursement from campaign funds by campaign check. Petitioner and his wife testified that these items of clothing were used exclusively for campaign functions and purposes. Admittedly, each of the items of clothing could be used for non- campaign functions and purposes. However, the Campaign Treasurer's Reports reflect that in excess of $1,100 of "campaign shirts" were purchased during the campaign, supporting Petitioner's contention that he, his wife and campaign workers were all attired, while campaigning, in a color-coordinated "uniform of the day": red shirts, and tan/khaki trousers or walking shorts. This is further supported by photographs admitted into evidence. I find credible and accept the testimony of Petitioner and his wife that the items of clothing in the questioned purchases were used exclusively for campaign functions and purposes and not to "defray normal living expenses." During the August 12 through August 31, 2000, campaign reporting period, Petitioner purchased the following items for which he received reimbursement from campaign funds by campaign check: trailer hitch ball, trailer security chain, and sign tie-downs (listed in paragraph 3, supra, as Purchases 15 and 16). These three items were clearly used for campaign purposes and not to "defray normal living expenses." On August 30, 2001, Petitioner received a campaign check from the campaign treasurer reimbursing him for several campaign expenses he had paid. Among these campaign expenses, Petitioner sought reimbursement for $100 for "auto insurance" (listed in paragraph 3, supra, as Purchase 23). From the onset of his campaign, Petitioner had consistently either paid his automobile liability insurer, United Services Automobile Association, directly with a campaign check or sought reimbursement for payments he personally made for liability insurance on his personal vehicle or the "campaign Jeep" for automobile liability insurance cost attributable to the use of the motor vehicles in the campaign. Automobile liability insurance expense is a legitimate campaign expense and can reasonably be considered an actual transportation expense exempt from the statutory prohibition against payments made to "defray normal living expenses." On July 12, 1999, Petitioner purchased a 1997 Jeep to be used as a campaign vehicle (the down payment, tax and tag are listed in paragraph 3, supra, as Purchases 1 and 2); thereafter, loan payments to Tyndall Federal Credit Union and automobile liability insurance payments to United Services Automobile Association for the campaign vehicle were paid by the campaign treasury. On December 7, 1999, the 1997 Jeep was sold/traded to a third party for a 1999 Honda which was not used as a campaign vehicle. The Tyndall Federal Credit Union lien was transferred to the 1999 Honda. After December 7, 1999, the 1999 Honda was driven by Petitioner's adult stepdaughter. At the time of the transfer of the vehicles, Petitioner and his wife agreed that she would reimburse the campaign $800 which was determined to be the value lost by the campaign when the 1997 Jeep was traded. Petitioner later determined that he should reimburse the campaign an additional $525, the amount of the down payment paid when the 1997 Jeep was purchased in July 1999. On June 2, 2000, Petitioner's wife tendered a personal check drawn on her personal account to the campaign account for $800, which was reported under an entry date of June 5, 2000, on the Campaign Treasurer's Report for the period ending June 30, 2000, as a "REF" made by Petitioner. On March 14, 2001, Petitioner tendered a personal check to the campaign account for $617. This included $525 for the 1999 Jeep down payment reimbursement and an automobile liability insurance refund. Prior to the June 5, 2000, "REF" entry on the Campaign Treasurer's Report, there had been no report reflecting the sale of the campaign vehicle. The sale of the 1999 Jeep should have been reported on the Campaign Treasurer's Report for the period ending December 31, 1999; it was not. Petitioner certified that he had examined the subject Campaign Treasurer's Report and that it was "true, correct and complete" when, in fact, it was not as it did not reflect the sale of the campaign vehicle or the failure of Petitioner to pay the campaign treasury either $800 or $1,325, the amount Petitioner ultimately determined the campaign treasury should have been reimbursed as reflected by his late reimbursements.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, James P. Appleman, violated Subsection 106.07(5), Florida Statutes, on one occasion and Subsection 106.19(1)(c), Florida Statutes, on one occasion and assess a civil penalty of $1,000 for the violation of Subsection 106.07(5), Florida Statutes, and a civil penalty of $2,400 for violation of Subsection 106.19(1)(c), Florida Statutes; and dismissing the remaining alleged violations of Chapter 106, Florida Statutes, against him as asserted in the Order of Probable Cause. DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 15th day of April, 2002. COPIES FURNISHED: David F. Chester, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello and Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
