The Issue Whether Petitioner’s application for a license to possess Class II Wildlife for exhibition or public sale should be approved.
Findings Of Fact FWC is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const.1 1 All references to the Florida Constitution, Florida Statutes, and Florida Administrative Code are to current versions that have not substantively changed as applied to the facts in this case. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from FWC. See § 379.3761(1), Fla. Stat. By rule promulgated by FWC, categories of wildlife for which a license is required are broken down into three classes. See Fla. Admin. Code R. 68A- 6.002. Generally, a person cannot possess Class I animals for personal pets unless they came into their possession prior to 1988. Class I animals include 24 different species generally considered extremely dangerous, and include wildlife such as chimpanzees, gorillas, orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. See Fla. Admin. Code R. 68A-6.002(1)(a). Class II animals include 38 different species that may, with a proper license, be possessed as personal pets or for commercial purposes. Class II animals have the potential to cause harm but not to the extent of Class I animals and include wildlife such as Howler monkeys, Patas monkeys, Vervet monkeys, Macaques, bobcats, wolves, wolverines, honey badgers, and alligators. See Fla. Admin Code R. 68A-6.002(1)(b). Class III animals include wildlife not listed as Class I or II. See Fla. Admin. Code R. 68A-6.002(1)(c). The application at issue in this case is Petitioner’s application, ID 75226, to possess, exhibit, or sell Class II wildlife. Petitioner’s application, dated September 9, 2019, identifies Macaques, Patas, Vervet, Grivet, and Green monkeys as species that he does not currently possess, put plans to possess. By letter to Petitioner dated February 5, 2020 (Denial Letter), FWC advised Petitioner that his application was being denied because of prior violations of law and FWC rules regulating wildlife. In particular, the Denial Letter states that on June 19, 2017, FWC investigator Rick Brown found Petitioner in possession of a Vervet monkey without a license. The Denial Letter explains that, on that same date, Petitioner told investigator Brown that Petitioner had sold a lemur, two squirrel monkeys, and an artic fox earlier in that year, but was unable to provide documents for those sales as required by FWC rule. According to the Denial Letter, Petitioner was issued misdemeanor citations for those violations and, on July 21, 2017, Petitioner received adjudication other than acquittal or dismissal for those violations. The Denial Letter also states that, during an investigation of Petitioner at a new location on February 13, 2018, conducted by FWC investigator Steve McDaniel, it was discovered that Petitioner had sold two ring-tail lemurs to an unlicensed individual on December 15, 2017, and that at the time of the sale Petitioner’s license was expired and was not otherwise valid for sales from Petitioner’s new location. The Denial Letter further states that as a result, Petitioner was issued a citation for selling the lemurs without a valid license and a written warning for selling to an unlicensed individual. According to the Denial Letter, on May 22, 2018, Petitioner received adjudication other than acquittal or dismissal for the citation. The Denial Letter concludes: Pursuant to Rule 68-1.010 [Florida Administrative Code], and due to facts stated above, your application has been denied. We are processing your application fee for a refund, and you should receive it within 21 days. During the hearing for this case, the factual basis set forth in the Denial Letter was demonstrated by a preponderance of the evidence provided by the testimony of FWC investigators Brown and McDaniel, the documentary evidence, and Petitioner’s own testimony. Indeed, the evidence showed that during an investigation conducted by investigator Brown on June 19, 2017, Petitioner was found to be in possession of a Class II Vervet monkey without a proper license. Petitioner has never had a Class II license. It was also demonstrated that, at the time of that investigation, Petitioner was unable to produce sales records for a lemur, two squirrel monkeys, and an arctic fox that he had sold earlier that year. While Petitioner provided some documents at the hearing purporting to be records related to those sales, they were insufficient to overcome the preponderance of the evidence in this case. At the hearing, Petitioner admitted that he paid the fine from the citation issued against him for possession of the Vervet and lack of sales records. In addition, it was shown by a preponderance of the evidence that on December 15, 2017, Petitioner sold two ringtail lemurs to an unlicensed individual under a Class III license that was expired and that, prior to its expiration, had only been valid at his previous location, instead of the new location where the sale had taken place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Petitioner Gregory Nelson’s application for a license to possess Class II wildlife for exhibition or public sale. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2020. COPIES FURNISHED: Gregory Nelson 23033 Brouwerton Road Howey-in-the-Hills, Florida 34737 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
The Issue Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are (1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination complaint.
Findings Of Fact The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA. Parties and Property Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes. On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement). The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay. The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years. The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence. Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button. Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory. Buttons As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA. Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks. Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries. Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21, 2016, to allow Buttons to ride on an airplane, Dr. Marks wrote: Ms. Taylor has been seen by me and I am familiar with her history and with function limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added). Later, after Petitioner moved into Pelican Bay, Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.” When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious. In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people are approaching and warn people not to come to close to her. Buttons does this by barking. Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program. Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/ As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA. Fourth of July In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event. The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay. Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner. Ms. Merrifield also met separately with Ms. Thompson to inform Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons. The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident. Thanksgiving Restrictions on Buttons On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows: Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes. The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee. Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked, Cheryl, Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?” Ms. Merrifield replied, In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times. It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA. Pool Incidents In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future. In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws. At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool. Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice. The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances. Non-Renewal of Purchase Agreement On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination. The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense. Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it. Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships. The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula C. Taylor, and dismiss her Petition for Relief. DONE AND ENTERED this 14th day of November, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2018.
The Issue The issue is whether the Respondents’ decision to award a landscaping maintenance contract to Cornerstone Tree Farm, Inc., is arbitrary or capricious.
Findings Of Fact The Districts are local units of special-purpose government authorized by Chapter 190, Florida Statutes (2008).1 Fishhawk Community Development District was established by Hillsborough County Ordinance No. 96-24, dated September 12, 2006. Fishhawk Community Development District II was established by Hillsborough County Ordinance No. 02-23, dated December 10, 2002. The Districts issued the RFP for landscape maintenance for the common area within the Districts. Addendum No. 1 was issued on June 23, 2008, and included a revised Section IV, which contained the scope of services and “general maintenance conditions/specifications.” Section I of the RFP provides: The purpose of this bid proposal is to arrive at a total lump sum bid amount and to determine the monthly maintenance of the landscaped areas as described in the Scope of Services. All responses must itemize the cost of each of the items described in the Scope of Services in Section IV (break out all costs such as the # of mowing by month and $ value by month etc.). Only those items specifically indicated in the Landscape Services Agreement and Scope of Services documents, shall be included in the bid amount. * * * The scope of work for this bid shall include mulching, planting of annuals, mowing of all grassy areas, trimming of all trees and shrubs, fertilizing and pruning of all landscaping, pest control and disease, weed control, edging, and inspection as outlined in the Landscape Services Agreement and the Scope of Services and the response must include all items described in the scope of work attached and described in Section IV. Section I of the initial RFP provides: Basis of Award/Right to Reject: The owner reserves the right to reject any and all bids, make modifications to the work, and waive any minor informalities or irregularities in Bids as it deems appropriate. The evaluation criteria (Exhibit B) will be used to evaluate the proposals. * * * The Bids will be evaluated based on the evaluation criteria in Exhibit B. The bids will be evaluated by the Fishhawk CDD & Fishhawk CDD II Board Members. The District shall select the lowest responsive and responsible bidder in accordance with this Invitation to Bid and the Fishhawk CDD & Fishhawk CDD II Rules of Procedure. Subsection 4.3(2)(f) of the Districts’ Rules of Procedure provide the following concerning contracts for maintenance services: In determining the lowest responsive and responsible bidder, the District Representative may consider, in addition to the factors described in the Invitation or request, the following: The ability and adequacy of the professional personnel employed by each bidder or proposer. The past performance of each bidder or proposer for the District and in other professional employment settings. The willingness of each bidder or proposer to meet time and budget requirements. The geographic location of each bidder or proposer’s headquarters or office in relation to the project. The recent, current, and project workloads of the bidder or proposer. The volume of work previously awarded to each bidder or proposer. Whether the cost components of each bid or proposal are appropriately balanced. Whether the bidder or proposer is a certified minority business enterprise. The Lowest Responsive and Responsible Bid/Proposal shall be accepted; however, the Board shall have the right to reject all bids, either because they are too high or because the Board determines it is in the best interests of the District. Addendum I, included the original advertisement of the RFP, provides the following: The District reserves the right to reject any and all bids with or without cause, award bids in total or in part, to waive technical errors or information, and to select the proposal determined by the District, in its sole discretion to be the proposal most advantageous to the District. It is unclear why the advertisement was issued as an addendum to the RFP. It is clear, however, that based on the Districts’ rules and the provisions of the RFP, the contract was to be awarded to the lowest responsive and responsible bidder. Subsection 1.0(2) of the Districts’ Rules of Procedure provides that “[d]efinitions located within any section of the Rules shall be applicable within all other sections, unless specifically stated to the contrary.” The definitions contained in Sections 4.1(2)(c) and (d) define “responsive bid/proposal” and “lowest responsible bid/proposal” as follows: “Responsive bid/proposal” means a bid or proposal which conforms in all material respects to the specifications and conditions in the invitation to bid or request for proposal and these Rules, and the cost components of which are appropriately balanced. A bid/proposal is not responsive if the person or firm submitting the bid fails to meet any requirement relating to the qualifications, financial stability, or licensing of the bidder. “Lowest Responsible bid/proposal” means, in the sole discretion of the Board, the bid or proposal (i) is submitted by person or firm capable and qualified in all respects to perform fully the contract requirements and with the integrity and reliability to assure good faith performance, (ii) is responsive to the invitation to bid or request for proposal as determined by the Board, and (iii) is the lowest cost to the District. Minor variations in the bid may be waived by the Board. Mistakes in arithmetic extension of pricing may be corrected by the Board. Bids may not be modified after the opening. Section 4.5 of the Districts’ Rules of Procedure deals with the procedures for purchasing contractual services and provides that "[a]ll purchases for contractual services (except for maintenance services) may, but are not required to, be made by competitive Invitation to Bid.” Subsections 4.5(2)(d) and (e) of the Districts’ Rules of Procedure define “responsive bid or proposal” and “lowest responsible bid or proposal” as follows: “Responsive bid or proposal” means a bid or proposal which conforms in all material respects to an Invitation to Bid or Request for Proposal and these Rules, and whose cost components are appropriately balanced. A bid or proposal is not responsive if the person or firm submitting the bid or proposal fails to meet any requirement relating to qualifications, financial stability, or licensing of the bidder or proposer. “Lowest responsible bid or proposal” means, as determined in the sole discretion of the Board, the bid (i) is submitted by a person or firm capable and qualified in all respects to perform fully the contract requirements who has the integrity and reliability to assure good faith performance, (ii) is responsive to the Invitation to Bid or Request for Proposal as determined by the Board, and (iii) which is for a cost to the District deemed reasonable by the Board. Minor variations in the proposal may be waived by the Board. Mistakes in arithmetic extension of pricing may be corrected by the Board. Bids may not be modified after opening. According to Debby Bayne, who was managing the bid solicitation of the Districts, the definitions of “responsive bid/proposal” and “lowest responsible bid/proposal” contained in Section 4.1 of the Districts’ Rules of Procedure applied to the procurement of maintenance contracts such as the one at issue. The bids were to be evaluated in five areas: personnel, experience, the bidder’s understanding of the scope of work, financial capacity, and price, and each area was assigned points. The RFP provided the following evaluation criteria: Personnel (E.g., skill set and experience of key management and assigned personnel, particularly the project manager; present ability to manage the project; proposed staffing levels, etc. Skill set includes certification, technical training, and experience with similar projects.) 20 Points Experience (E.g., past record and experience of the respondent in similar projects, volume of work previously awarded to the firm; past performance in any other contracts; character; integrity, reputation, references of respondent, skilled labor force assigned, inventory of all equipment and year of equipment, etc.) 25 Points Understanding of Scope of Work Does the proposal demonstrate an understanding of the District’s needs for the services requested? Does it demonstrate clearly the ability to perform these services? Were any suggestions for “best practices” performances included? Do you have additional skilled manpower to provide this service? 20 Points Financial Capacity Demonstration of financial resources and stability as a business entity necessary to implement and execute the services required. If all financial information is not provided, Proposer will earn no more than five (5) points. 5 Points. Price 30 Points Section I of the RFP provides the following for the awarding of points for price: Price--Will be awarded to the Proposer submitting the lowest bid for completing the work for the initial term of the contract. All other proposals will receive a percentage of this amount based upon the difference between that Proposer’s bid and the low bid. Although the RFP provided for the award of points to the bidders based on the evaluation criteria, nowhere in the RFP does it state that the contract will be awarded to the bidder who receives the highest number of points. The RFP did not provide that a bidder had to garner a certain number of points to be considered responsive and responsible. The RFP provided that the contract award would be made to the lowest responsive and responsible bid/proposal. The bidders who were responding to the RFP were required to submit a lump sum price for the work to be performed pursuant to the contract. The lump sum amount was to be set forth on the bid form contained in Section II of the RFP. The bid form also required that the bidders “include an itemized schedule of each monthly service by cost.” Section IV of the RFP provides the following specifications for the planting of annual flowers and the mulching of planting beds and tree rings: Variety and Rotation Schedule: The annual bed plantings of flowers at Fishhawk Ranch shall be maintained with year round color. Seasonal rotations of four (4) different “crops" are required by the Landscape Contractor each year (Approximately 15,000 plants). Plants shall be in 4” pots and planted at 10” on center (tip to tip) in staggered rows throughout the bed area. The owner’s representative and the Contractor shall determine the flower varieties. The annuals are to be contract grown with an approved grower. * * * Mulching: All shrub planting beds and tree rings shall be maintained with a minimum 3” thick layer of medium sized pine bark nuggets as the mulch product. In some areas pine straw is currently used and is allowed; however, pine bark mulch throughout Fishhawk Ranch shall be re-mulched once per year to remove decaying, matted material and allow for fertilizer to penetrate to the shrubs root zone. The new mulch is to be installed in December and January. The specifications for the mulch did not include a specific amount that was to be applied. The contractor was to apply however much mulch it took to maintain a three-inch layer of mulch at all times and to replace the mulch entirely once a year. The RFP did not call for a unit price to be bid for mulch, nor did the RFP require the bidders to state a certain amount of mulch that would be applied. The specifications for the planting of annuals provided the amount of annuals as an estimate. The contractor was to provide sufficient annuals so that four-inch pots of annuals could be planted in the beds on ten-inch centers in staggered rows four times per year. The RFP did not call for a unit price for the annuals. Eight responsive bids were received by the Districts in response to the RFP. Greenbriar and Cornerstone were among the responsive bidders. Both Greenbriar and Cornerstone were determined to be responsible bidders. The lump sum bid by Greenbriar was $664,389.00. In the price itemization required by Section I and the bid form of the RFP, Greenbriar listed the monthly cost of mulch at $2,987.75 for an annual cost for mulching of $35,853.00, representing 918 cubic yards of mulch. Under the itemization for the bedding plants, Greenbriar listed 15,000 annuals per rotation of bedding plants for an annual total cost of $84,140.00. The lump sum bid by Cornerstone was $691,428.27. Cornerstone itemized the annual cost of mulch as $103,125.00, which represented 2,750 cubic yards of mulch. Cornerstone listed the cubic yard price of the mulch as $37.50. Cornerstone listed the annual cost of the bedding plants as $91,000, which represented four rotations of 13,000 annuals at a price of $1.75 per annual. The itemized price for mulch for the other bidders ranged from $46,200.00 to $66,300.00 with the average price of $57,250.00 for the other bidders. Greenbriar's pricing for mulch was more in line with the amount of the other bidders than the pricing of Cornerstone. The proposals were provided to the members of the Board of Supervisors for the Districts. The board members reviewed the proposals and in some cases investigated the experience and references of the bidders. On July 11, 2008, the Districts’ board members met to consider the proposals received in response to the RFP. Some board members were concerned about the wide discrepancy of the price of mulch for Cornerstone and for Greenbriar. A suggestion was made to delete the cost of the mulch in order to compare the eight proposals. The board members were told to evaluate the proposals without considering the cost of the mulch. The only evaluation category that would have been affected by deleting the mulch was price. The board members evaluated the bids without including the cost of mulch, except for at least one board member who did include the cost of mulch in his evaluation. Based on the evaluations, Cornerstone received the highest ranking, and Greenbriar was next in line. The board members voted to award the contract to Cornerstone and authorized the negotiation with Cornerstone for the amount of the mulch. The unit price for mulch listed in Cornerstone’s bid would be included in the contract as well as the unit price included for annuals. Thus, the final amount of the landscape maintenance including mulch would not be known until negotiations were completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the protest of Greenbriar. DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2008.
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed April 15, 2011 2:00 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-067
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-067 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this AV day of April, 2011. Paula Ford Agency Clerk By Inter-Agency Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, FL 33712 TWReeseEsq@aol.com Steven T. Williams, Esquire Office of the County Attorney Harmon Turner Bldg, 8th Floor 3301 East Tamiami Trail Naples, FL 34112 StevenWilliams@colliergov.net Richard D. Yovanovich, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples FL 34103 ryovanovich@cyklawfirm.com FINAL ORDER NO. DCA 11~GM-067 Michael A. Durant, Esquire Conroy, Conroy & Durant, P.A. 2210 Vanderbuilt Beach Road, Suite 1201 Naples, FL 34109 mdurant@ccdlegal.com Lynette Norr, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us
The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2011.
