The Issue The issue for consideration in this case is whether the Respondent, Florida Board of Regents, acted fraudulently, arbitrarily, illegally or dishonestly in its award of Board Project Number BR-403, for the extension of Gemini Boulevard on the campus of the University of Central Florida, (UCF), to Amick Construction, Ltd., the second lowest bidder, instead of to Petitioner, Hubbard Construction Company, the lowest bidder.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Florida Board of Regents, was the state agency responsible for the award of major procurement and construction contracts for projects at the various state universities in Florida. On October 26, 1994, the Regents issued a Project Manual requesting bids for the Gemini Boulevard Extension Project at the University of Central Florida, Contract No. BR-403 . The procurement had a Minority Business Enterprise, (MBE) goal of 21 percent of the base bid. Included within the bid documents was the provision that: The Bidder must ascertain that a listed MBE is certified by the DGS in the appropriate Specialty Area to perform the services for which it is listed. The Bid Documents also provided that MBE's not certified with the DGS would be deleted from the calculation of the required participation of MBEs, and evidence of good faith effort in lieu of a showing of an adequate percentage of certified MBE's would be required. Hubbard picked up a copy of the Bid Documents from UCF on November 23, 1994. The Bid Documents did not specify the manner in which bidders were to verify certification status of the MBE's they proposed to use, and which were listed in their bid submittals. However, at the pre-bid conference held on November 30, 1994, UCF's representative advised the prospective bidders that DMS was to be used as the source for MBE certification. Susan Hodge, a DMS employee, was identified as the person to be contacted to verify the certification status of any particular MBE. Her telephone number and name were given out at the pre-bid conference, but this information, and the suggestion that prospective bidders call Ms. Hodge, was not made a written requirement of the procurement. This meeting was attended by Michael Jones of Hubbard. However, regardless of the fact that the prospective bidders were given Ms. Hodge's name and number and advised to call her, only Amick did so prior to bid opening. Hubbard did not. Notwithstanding the Bid Documents required DGS certification of MBEs, at the time of bidding there was no such agency. It had been replaced by the Department of Management Services, (DMS). This agency, however, does not certify MBE's. Required state certification is done by the Commission on Minority Economic and Business Development, (Commission). The terms, "Commission" and "DMS" were used interchangeably by witnesses at the hearing. When the Commission took over from DGS the responsibility for maintaining the list of certified MBE's it began the periodic publishing of written listings of certified MBE's so that prospective bidders could review the list to see if a particular organization or business was certified. A copy of the list was published in December, 1994, before the bids were opened. This vendors list was not intended to be the sole source for identifying certified MBE contractors. Bidders were free to contact the appropriate agency soliciting bids to determine specific agency criteria, if any. The State University System's, (SUS), Standard Practice for the Solicitation of Bids, written guidelines covering procurement practice by those entities within SUS, calls for each university to establish a geographic radius for identifying MBE's in mailing invitations to bid. This radius includes the distance which a contractor may reasonably be expected to travel to a project for which materials or supplies can be obtained on site at a competitive price. The guidelines also require each university to identify general and specialty trade units for each project; to identify MBE's consistent with the breakdown of specialty trade units within the geographic radius; and to prepare mailing lists of MBE's to which invitations to bid may be mailed. These guidelines, as published, are followed by UCF's minority purchasing coordinator, Mr. Puskas, in the performance of his duties. In actuality, however, the sequence of events is somewhat different than listed above. In practice, the project architect selects the commodity and trade areas from the directory, after which he selects minority vendors listed under each appropriate commodity and trade area on lists prepared by UCF. As established, the pertinent geographic area is a five-county local area in central Florida. Certain statewide vendors are also included. The final UCF list of MBE's is provided to bidders at the pre-bid conference for their use in locating MBE's. The list required by the Standard Practice guidelines is similar to that required by statute in Sections 255.102(c), and 287.0945(6)(h), Florida Statutes. In the instant case, however, because most of the MBE's on the initial list prepared for this project were of little value to prospective bidders, Mr. Puskas believed that list needed adjusting. Seven bids were received for the project in issue. The bids were opened on December 14, 1994 and it was determined that Hubbard had submitted the lowest bid of $1,544,000. Second lowest bidder was Amick whose base bid was $1,662,821. Section 1.1.1 of the Special Conditions contained in the Bid Documents required that at least 21 percent of the base bid be with certified minority business enterprises, unless the bidder could demonstrate the good faith effort to secure certified MBE's was made, as identified in paragraph 1.7. This requirement was incorporated in the bid proposal furnished to Hubbard. Hubbard's bid included a list of five MBEs it proposed to use on this project. Included on the list was Margie Woods Trucking. The total dollar amount proposed to be expended on the MBEs was $325,000, which constitutes 21 percent of Hubbard's base bid. This list of MBE's submitted by Hubbard was on a form which contains the words, "Include only MBE's certified by the DGS." When the bids were opened, and it was determined that Hubbard was the apparent low bidder, UCF procurement personnel verified that Hubbard proposal met the 21 percent MBE goal. Thereafter, Mr. Puskas placed telephone call to the Commission office in Tallahassee to determine if all MBE's listed by Hubbard in its bid were state certified. It was found that Margie Woods Trucking was no longer certified by the Commission, but was certified by the Florida Department of Transportation and by Volusia County. If Margie Woods Trucking could not be considered a properly certified MBE, Hubbard's bid would not meet the 21 percent MBE goal. When this situation became apparent, Mr. Newman, UCF's director of facilities planning, telephoned Terri Tabor, the Regents' project administrator, and advised her of the problem. Ms. Tabor instructed him to request that Hubbard find a substitute MBE for Margie Woods Trucking. Ms. Tabor indicated that when she had previously worked at DMS, substitutions of MBE's was permitted "all the time." Mr. Newman commented on Hubbard's failure to verify the certification of its proposed MBEs in an E-mail communication to the UCF administration on December 14, 1994. In any event, consistent with Ms. Tabor's suggestion, at 11:25 AM on December 15, 1994, Mr. Newman telephoned Hubbard's vice-president of estimating and contract administration, Mr. Lindquist, and instructed him to submit an MBE substitute for Margie Woods within 48 hours of the bid opening. At hearing, Ms. Tabor claimed that after her first call from Mr. Newman, she called him back and advised him that substitutions would not be allowed. On December 16, 1994, two days after the bid opening, Hubbard submitted its good faith effort package, along with a cover letter which provided a revised listing of its MBE's and requested that Florida Industrial Electric and C & M Jackson Trucking be substituted for Margie Woods. The value of the substitute MBE's was $51,000 and $8,000, respectively. This submittal was timely. Hubbard contends that Ms. Tabor did not call back to rescind her prior comments about substitution of MBE's. However, from her testimony and the fact that Mr. Puskas, UCF's minority purchasing coordinator, indicated he knew the Regents would not accepts substitutes, it is found she did call back, and that her information was transmitted to Hubbard. UCF's Minority Business Enterprise Advisory Committee met on December 19, 1994 to evaluate Hubbard's good faith effort package. The package was found to be "in compliance" with the MBE requirements of the bid documents but deficient in the areas of advertising, number of letters to MBE subcontractors or suppliers, and other documentation. In that regard, the committee determined that Hubbard should have sent letters to at least one half the MBE's on the list provided to prospective bidders. Nonetheless, the Committee considered Hubbard's substitutes even though Mr. Puskas knew such substitutes would not be and never had been accepted by the Board of Regents. It did not, however, fill out a good faith check list in its consideration of the package because, according to Mr. Puskas, it was satisfied Hubbard was not in compliance with the good faith effort requirements. Notwithstanding this conclusion, on January 4, 1995, Mr. Newman recommended award of the contract to Hubbard. This award was for the Base Bid plus Alternate 1, for a total contract price of $1,914,000. Mr. Murray, of UCF's Small Business Development Center recommended the award only subject to a Regents' review of Hubbard's compliance with the conditions of the contract. When the package was received in Tallahassee, Ms. Tabor, at the request of Mr. Newman, reviewed Hubbard's good faith effort submittal, along with the collateral documents and the MBE compliance checklist completed by UCF. She concluded that for a variety of reasons, Hubbard's good faith effort was unsatisfactory. One reason was that it did not appear that Hubbard's advertisement in the area's biggest newspaper had run for seven days prior to the bid opening, as required by paragraph 1.7.2 of the good faith effort requirements. The evidence on this point presented at hearing indicated that Hubbard submitted advertisements for publication to three newspapers in the Orlando area. Hubbard submitted a letter to the Orlando Sentinel dated December 7, 1994. The Orlando Sentinel is the primary newspaper in central Florida, not the Orlando Times, a minority newspaper targeting the African-American community. However, the affidavit of publication from the Orlando Sentinel was dated December 15, 1994 and received by Hubbard sometime thereafter. Consequently, Hubbard did not have that affidavit to submit at the time it sent in its good faith effort. Accepting that the newspaper advertisements were properly placed, however, this is but one of the several bases for the Board of Regents' determination of a lack of good faith effort. Others included the eleven letters sent to MBE's consistent with the requirements of Paragraph 1.7.3. In that provision, the Regents look for evidence that the bidder solicited specific trades for MBE participation, matching capabilities of MBE's solicited with the requirements of the contract. Of the eleven letters which Hubbard submitted, none but one bore dates or postal marks indicating when the letters were sent. That one letter bore date of December 6, 1994. This documentation was considered insufficient. Another basis for rejection, regarding the letters, was Ms. Tabor's conclusion that in light of the number of available MBE's in the area, in excess of 50 on the list, eleven was not a reasonable number. This is so even though many of the contractors on the list were in specialties not relevant to this project. The Board also determined that Hubbard's evidence of its attempts to follow up on initial solicitations by telephone was insufficient. Hubbard admitted it did not follow up by letter. Mr. Jones, a Hubbard estimator, indicated he contacted several MBE's by telephone because it was quicker and time was short. Hubbard submitted a telephone log in support of its contention but this log was discounted as an acceptable documentation. In addition, the log was considered substantively deficient because of what appeared to be a halfhearted attempt to make contact. This conclusion is considered reasonable. Another reported deficiency is the failure of Hubbard to submit information which would show it attempted to break down contracts into smaller units in order to increase the opportunity to participate by MBE's and to provide them with information sufficient to allow them to bid on time, as is required by Paragraphs 1.7.5 and 1.7.6. This point is well taken. The Board also contends that Hubbard provided no evidence that, as required by Paragraph 1.7.7, it negotiated in good faith with interested MBE's. It appears that Hubbard did, in fact, produce no such evidence, nor did it offer any explanation in its cover letter. It also appears that Hubbard failed to present evidence to indicate it effectively utilized the services of available minority community organizations, contractor organizations, governmental minority business assistance officers, or other similarly directed organizations, as called for in Paragraph 1.7.8. Hubbard's testimony at hearing regarding its disagreement with the Board's appraisal was non-persuasive on this point. In her evaluation of the matters submitted as Hubbard's good faith effort, Ms. Tabor did not review the telephone log submitted by Hubbard. Hubbard claims she had no idea what it did to try to verify whether the MBE's listed were certified by the commission. She did not try to obtain better copies of Hubbard's letter to MBE's seeking bids nor did she have available to her any of the state generated lists of certified MBE's to compare against Hubbard's submittal. There is some evidence that Ms. Tabor did not try to determine if Hubbard's good faith efforts were substantial or merely pro forma. She admitted at hearing she was not sure what the term "pro forma" means. In short, Ms. Tabor did not go much behind the documents submitted to her for evaluation by the Committee at UCF. Nonetheless, considering all the above factors, Ms. Tabor concluded Hubbard's submittal failed to establish either that it met the 21 percent MBE goal or that it made a good faith effort to do so. She also discussed her conclusions with the Board's Director of Capital Programs and its General Counsel who concurred with her analysis that Hubbard's bid was non-responsive and should be rejected. The Chancellor accepted this evaluation and recommended award to Amick, the second low bidder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Board of Regents enter a Final Order in this case awarding BR-403 to Amick Construction, Ltd. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. - 11. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 15. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of law. Accepted. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the contents of a document received in evidence. Not a Finding of Fact but a comment on the evidence. The conclusion of mistake was not proven. 25. - 27. Accepted and incorporated herein. 28. Rejected as contra to the better weight of the evidence. 29. & 30. First paragraph and first sentence of second paragraph accepted and incorporated herein. Second sentence of second paragraph rejected as not supported. 31. - 33. Accepted and incorporated herein. 34. First sentence accepted. Second sentence rejected as not supported. 35. Accepted and incorporated herein. 36. & 37. Accepted. 38. Accepted that the request for publication was submitted in advance of the bid opening but that request does not establish the ad was run. The affidavit dated December 15 was executed after the bids were opened and was not available to the UCF Committee on time. 39. Accepted. 40. & 41. Accepted. 42. First sentence accepted. Second sentence rejected as an effort to transfer the burden of proof. 43. & 44. Accepted and incorporated herein. 45. & 46. Accepted and incorporated herein. 47. & 48. Accepted and incorporated herein. 49. & 50. Accepted and incorporated herein. 51. - 53. Accepted. 54. & 55. Accepted. 56. Irrelevant. 57. & 58. Accepted. 59. Accepted. 60. - 63. Accepted. 64. Not proven. 65. & 66. Accepted. 67. Accepted and incorporated herein. 68. Accepted but not persuasive. 69. & 70. Accepted, but as to 70, there is no evidence of how this is done. 71. - 73. Accepted. 74. & 75. Irrelevant. 76. & 77. Accepted but information and opinion expressed in 77 is irrelevant to the issue in this matter. 78. & 79. Accepted. 80. & 81. Accepted. 82. Accepted but not determinative of any issue. 83. & 84. Accepted. 85. Accepted and incorporated herein. 86. Accepted and incorporated herein. 87. & 88. Accepted. 89. & 90. Not Findings of Fact but Conclusions of Law. FOR THE RESPONDENT: Accepted. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. - 14. Accepted. 15. - 18. Accepted. 19. Accepted. 20. & 21. Accepted and incorporated herein. 22. & 23. Accepted. 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 34. Accepted and incorporated herein. 35. - 47. Accepted and incorporated herein. 48. - 53. Accepted and incorporated herein. 54. - 56. Accepted and incorporated herein. 57. Accepted. 58. - 60. Accepted and incorporated herein. 61. Accepted and incorporated herein. FOR THE INTERVENOR: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein, Accepted. Accepted. Accepted and incorporated herein. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted and incorporated herein. 33. Irrelevant. 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36. & 37. Accepted and incorporated herein. 38. & 39. Accepted. 40. - 43. Accepted. 44. & 45. Irrelevant. COPIES FURNISHED: Kevin F. Foley, Esquire William L. Grant, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Plaza Orlando, Florida 32801 Jane Mostoller, Esquire Florida Board of Regents 325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950 Eli H. Subin, Esquire Subin, Shams, Rosenbluth, Moran, Losey & Brennan, P.A. 111 North Orange Avenue, Suite 900 Post Office Box 285 Orlando, Florida 32802 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Each Petitioner is a sexually violent predator, and collectively are persons subject to chapter 394, part V. Petitioners are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioners also claim that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioners do not allege that they are housed at FCCC pursuant to the Baker Act.2/
Findings Of Fact Background In September 1988, Respondent, Department of Transportation (Department), issued an invitation to bid (ITB), State Project NO. 89 060-3523, for road work on SR-76 (Kanner Highway) in Martin County, Florida. By October 26, 1988, the bid opening date, four bids had been filed with the Department. On December 5, 1988, the bid results were posted by the Department. The bid results revealed that Petitioner, Dickerson Florida, Inc. (Dickerson), was the lowest bidder at $1,057,464.71 and that Ranger Construction Industries, Inc. (Ranger) at $1,145,177.61 was the second lowest bidder. The bid results further revealed that the bid of Dickerson had been rejected as non-responsive because it purportedly did not achieve the disadvantaged business enterprise (DBE) goal of 12 percent established by the ITB, and that the Department proposed to award the contract to Ranger. Dickerson timely filed a written notice of protest and formal written protest contesting the Department's decision, and the matter was referred to the Division of Administrative Hearings for formal hearing. The Bid Documents Pertinent to this case, the ITB contained the following provisions: SPECIAL PROVISIONS DISADVANTAGED BUSINESS ENTERPRISES 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Forms Nos. 275-020-002-DBE Utilization Affirmative Action Certification, 275-020-003- DBE Utilization Summary and 275-020-004-DBE Utilization Form): The names and addresses of certified DBE firms that will participate in the contract. Only DBEs certified by the Department at the time the bid is submitted may be counted toward DBE goals. A description of the work each named DBE firm will perform. The dollar amount of participation by each named DBE firm. If the DBE goal is not met, suffi- cient information to demonstrate that the contractor made good faith efforts to meet the goals. (Emphasis added) Accompanying the ITB were three DBE utilization forms which, pertinent to this case, provided the vehicle for complying with the foregoing special provisions, and which the bidder was required to complete and include in its bid. Among these was form 275-020-004, the DBE Utilization Form, which required, consistent with the special provisions, that the bidder provide the name, address, and telephone number of the DBE subcontractor, as well as the item number and description of the work the subcontractor was to perform. One utilization form, signed by the bidder (prime contractor), was to be submitted for each DBE utilized on the project. Significantly, the utilization form to be signed by the bidder contained the following provision: (Signature and submission with the prime contractor's bid signifies acceptance of the quote and an obligation to subcontract the work to the DBE as indicated). The other two DBE utilization forms that were to be included in the bid were form 275-020-003, the DBE Utilization Summary, and form 275-020-002, the DBE Utilization Affirmative Action Certification. The DBE Utilization Summary provided the vehicle for the bidder to submit the dollar amount of participation by each DBE firm, and to derive a DBE percentage participation for the total project. It also requested that the bidder provide the following information: Number of DBE Utilization Forms attached NOTE: Sign and attach all Utilization Forms which you are using toward the DBE goal. By submittal of the DBE Utilization Form and the DBE Utilization Summary, the bidder could comply with the special provisions of the ITB regarding DBE utilization. The final DBE utilization form that was to be included in the bid, the DBE Utilization Affirmative Action Certification, required the bidder to certify the existence of an approved DBE Affirmative Action Program Plan or that it was submitting a plan for approval with its bid. The certification form, which was to be signed by the bidder, contained the following conspicuous notation: The Florida Department of Transportation requires the Disadvantaged Business Enterprise Utilization Form(s) to accompany the bid documents.... FAILURE TO SUBMIT THE DISADVANTAGED BUSINESS ENTERPRISE UTILIZATION FORM(S) REFLECTING FULL COMPLIANCE WITH THE CONTRACT GOAL, OR IF THE DISADVANTAGED BUSINESS ENTERPRISE UTILIZATION FORM(S) DO NOT REFLECT FULL COMPLIANCE WITH THE CONTRACT GOAL, FAILURE TO SUBMIT SUFFICIENT DOCUMENTATION TO DEMONSTRATE GOOD FAITH EFFORTS TO MEET THE GOAL WILL BE JUST CAUSE TO CONSIDER THE BID NONRESPONSIVE AND TO REJECT THE BID. THESE DOCUMENTS MUST BE SUBMITTED WITH THE BID PROPOSAL. Dickerson's Bid The bid submitted by Dickerson included the DBE Utilization Affirmative Action Plan Certification and a DBE Utilization Summary evidencing a DBE percentage participation for the total project of 13.39 percent. As submitted, the utiliza- tion summary listed Dickerson's DBE subcontractors and the amount of their participation as follows: A. Highway Valets, Inc. -- $ 6,473.35 B. Temple's Heavy Hauling -- $44,536.25 C. Highway Valets, Inc. -- $ 6,730.00 D. Pary, Inc. -- $ 5,264.00 E. Siboney Contracting Co. -- $45,938.55 F. Advance Barricades and Signing, Inc. -- $32,599.80 Accompanying Dickerson's bid were DBE Utilization Forms for Highway Valets, Inc. and Temple's Heavy Hauling, signed by the DBE subcontractor and Dickerson, which contained the item number and description of the work to be performed by those subcontractors, as well as a DBE Utilization Form for Siboney Contracting Company, signed only by Dickerson, which contained the item number and description of the work to be performed by that subcontractor. No DBE Utilization Form was submitted for Pary, Inc. or Advance Barricades and Signing, Inc., and Dickerson's bid contained no information to demonstrate the item number or work those firms were to perform on the project. Upon noting the absence of any DBE Utilization Forms for Pary or Advance Barricades, or any other documentation from which the item numbers and work description for these DBE's could be ascertained, the Department reduced the dollar value of Dickerson's DBE participation by the amount allocated to these firms, and recalculated a DBE percentage for Dickerson of 9.8 percent, well below the DBE goal of 12 percent. Thereafter, upon concluding that Dickerson's failure to include the item number and description of the work to be performed by the DBE's was not a minor irregularity that could be waived, discussed infra, and that Dickerson had submitted no documentation with its bid to demonstrate that it could not in good faith achieve the goal, the Department proposed to reject Dickerson's bid as non-responsive for its failure to achieve the DBE goal of 12 percent established by the ITB. 1/ On December 12, 1988, some seven days after the Department posted the bid result, Dickerson submitted to the Department a DBE Utilization Form for Pary and Advance Barricades which contained the item number and description of the work to be performed by those firms. Notably, neither form was signed by Dickerson, as required by the ITB, and the quotation of Advance Barricades was for $53,208, some $20,618.20 more than the participation allotted to that firm in the utilization summary submitted with Dickerson's bid. A Minor Irregularity? Minor irregularity is defined by Rule 13A-1.002(10), Florida Administrative Code, as: ... a variation from the invitation to bid ... which does not affect the price of the bid or give the bidder ... an advantage or benefit not enjoyed by other bidders ..., or does not adversely impact the interests of the agency. Variations which are not minor can not be waived. In the instant case, the proof demonstrated that Dickerson's failure to include a description of the work Pary and Advance Barricades were to perform on the project would adversely affect the interests of the agency. The Department has experienced significant problems in the past in its administration of the DBE program, particularly in the reliability of the DBE participations contained in bid documents. The purpose of the special provisions of the ITB, which parrot Rule 14-78.003(2)(b)3, Florida Administrative Code, relating to the name, amount of participation, and work to be performed by the DBE subcontractors are designed to assist the Department in achieving the goals established by the DBE program by increasing the reliability of the bid documents. Historically, bids have been submitted to the Department with inflated DBE participations and with the names of DBE's who had never been contacted by the prime contractor to perform any work on the project. Absent a description of the work the DBE subcontractor had agreed to perform, the Department has been frustrated in its efforts to confirm, post bid, that the DBE subcontractor is doing the type and amount of work for which it contracted. Consequently, DBE participation on a project has frequently differed significantly from that stated in the bid documents, and as contemplated by the Department By requiring compliance with the special provisions of the ITB, and its rule, the Department essentially forces the solidification of a contract between the prime contractor and the DBE subcontractor, and gains reliability in the DBE participation specified in the bid documents, and achieves a binding commitment that can be verified post bid. Under such circumstances, a bid's failure to include a description of the work a DBE subcontractor is to perform on the project is a variation that would adversely impact the interests of the agency and cannot be waived.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by Dickerson Florida, Inc. DONE and ENTERED in Tallahassee, Leon County, Florida, this 17th day of February, 1989. WILLIAM J. KENDRICK 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 17th day of February, 1989.
Findings Of Fact The underlying case for which attorneys fees in the undisputed amount of $2,775.00 are sought involved a 1992 application by Union Trucking, Inc. for recertification by the Florida Department of Transportation (FDOT) as a disadvantaged business enterprise (DBE). Union Trucking, Inc. had originally been certified by FDOT in 1988, and upon successive applications for certification, had been recertified by FDOT in 1989, 1990 and 1991. Recertification was applied for on July 20, 1992 and denied on December 14, 1992. A request for formal hearing followed on January 15, 1993 and the case proceeded before the Division of Administrative Hearings (DOAH) until FDOT recertified Union Trucking, Inc. on October 15, 1993. On November 17, 1993, DOAH hearing officer P. Michael Ruff entered an order relinquishing jurisdiction, which resulted in FDOT's December 17, 1993 final order. FDOT's final order was entered on the grounds that certification had been granted, did not alter the recertification terms, and dismissed the request for formal hearing. On February 14, 1994, less than sixty days after entry of the FDOT final order, Petitioner filed its original "Application for Award of Attorneys Fees Pursuant to F.S. 57.111," hereafter "petition." On March 2, 1994, FDOT filed a response, which, although no motion to dismiss was filed, addressed assorted insufficiencies of the petition. FDOT's response did not raise any timeliness bar. An order of dismissal with leave to amend within fifteen days was entered by the undersigned hearing officer on April 21, 1994. The amended petition was filed May 11, 1994, and FDOT filed its response on May 26, 1994, still not asserting any timeliness bar. At formal hearing, the parties stipulated that the only issue for consideration was whether or not FDOT had been substantially justified in denying the 1992 recertification. Otherwise, it was undisputed that Petitioner is a small business party; that FDOT was not merely a nominal party; that the employment, amount of fee, and hours worked by Petitioner's counsel were as stated in the pleadings, and that there were no "unusual circumstances" as contemplated within the applicable statute and rule. The undersigned hearing officer suggested that the parties include in their post-hearing proposals arguments directed to timeliness, vel non, of the attorney's fee and costs petition, and thus, whether or not DOAH has jurisdiction of this case. With regard to the "substantial justification" issue, it is necessary to review the DBE process since 1991. Union Trucking, Inc.'s 1991 application for recertification was received by FDOT on April 30, 1991. Documents submitted to FDOT by Union Trucking, Inc. in conjunction with the 1991 application revealed that Petitioner corporation had undergone an ownership change on April 1, 1991, approximately 29 days prior to submittal of the 1991 application, which ownership change had transferred 49 percent of Union Trucking, Inc.'s corporate stock from Denise Willis to Robin P. Wilson; that the new owner, Robin P. Wilson, did not list any employment on her resume other than at Pritchett Trucking, Inc.; that Union Trucking, Inc. had a business relationship with Pritchett Trucking, Inc.; and that the new 49 percent owner of Union Trucking, Inc., Robin P. Wilson, is the daughter of Marvin Pritchett, owner of Pritchett Trucking, Inc. Marvin Pritchett is a white American male. Robin Pritchett Wilson is a white American female. Denise Willis, who previously owned the 49 percent of Union Trucking, Inc. stock which was transferred to Robin Wilson is also a white American female, and the stepdaughter of Marvin Pritchett. From Union Trucking, Inc.'s inception and at all times material, 51 percent of Union Trucking, Inc.'s stock has been owned by Warren Lee, a black American male. At all times material, Union Trucking, Inc. has been 100 percent owned by disadvantaged classes (female and black). At all times material, FDOT did not break down its disadvantaged certifications as to "black" versus "female" for purposes of categorizing DBE status, but only looked to whether or not at least 51 percent of the stock was owned by a member(s) of a disadvantaged class. FDOT has no rule specifically requiring that all owners work in the business, only that day to day control be in the hands of the disadvantaged class. FDOT conducted an on-site visit to Union Trucking, Inc. on July 22, 1991, at which time FDOT requested additional information as to Robin Wilson's employment with Union Trucking, Inc. and was notified that Robin Wilson spent approximately one to two hours per day working for Union Trucking, Inc. FDOT also inquired about Union Trucking Inc.'s business relationship with Pritchett Trucking, Inc. and received the explanation that the relationship was "like any lease owner with the company they lease with." DBE personnel at FDOT did not understand what this response meant, but they did not inquire further in 1991. Instead, the FDOT DBE certification committee voted to recertify Union Trucking, Inc. with a special monitor, because there were undefined "concerns" and unidentified "feelings" about the eligibility of Union Trucking, Inc. At formal hearing, FDOT personnel were very clear that recertification in 1991 with a "special monitor" meant that when Union Trucking, Inc. came up for recertification in 1992, an on-site review must be conducted. Prior to receiving Union Trucking, Inc.'s July 20, 1992 application for recertification, FDOT was notified by the Department of General Services (DGS) that DGS also had "concerns" about Union Trucking, Inc. On September 10, 1992, DGS notified FDOT that DGS had denied Union Trucking, Inc.'s application to DGS for Minority Business Enterprise (MBE) certification, that the DGS denial had been upheld at a DOAH hearing, and that FDOT would be provided a copy of the DOAH hearing officer's recommended order. FDOT subsequently received a copy of that recommended order which had been entered September 9, 1992. FDOT's Minority Programs Office Manager testified that, in his opinion, the recommended order in the DGS case (Exhibit DOT 9) "verified" the FDOT "concerns" expressed during the 1991 FDOT recertification process, but he defined those concerns as independent financing. The FDOT DBE certification committee chairperson testified that the recommended order addressed concerns expressed during the 1991 FDOT recertification process, but he defined the concerns differently, as lack of independency from familial relationships, i.e. control, and financial relationships of family corporations. Both men considered FDOT's and DGS' rules to be substantially similar. In fact, the September 9, 1992 recommended order to DGS involved a different agency (DGS) than FDOT, a different statute (Section 287.0943 F.S.) than the one authorizing FDOT's DBE program and different rules (Rules 13A- 2.005(4)(a) and (b) and 13A-4 F.A.C.) than the ones administered by FDOT. FDOT is required to operate under Section 337.135 F.S. and administer Rules 14-78.002 and 14-78.005 F.A.C. Also, the recommended order focused on a legal conclusion that Union Trucking, Inc. was financially dependent, or at least at the time of its corporate "start-up" in 1986 was financially dependent, upon Pritchett Trucking, Inc. The recommended order stated, in pertinent part, as follows: . . . co-owner of the applicant is Pritchett's daughter and a natural subject of his goodwill and generosity, such a relationship is prohibited by the statute, [referring to Section 287.0943 F.S.] Similarly, her service as a director of Pritchett corporation, carrying on Union's business from her desk at Pritchett Trucking is natural, but estab- lishes a prohibited relationship. [Bracketed material added her for clarification]. Upon receipt of the DGS recommended order, FDOT did not seek further explanatory information from the applicant, as was FDOT's standard procedure under its normal operation. Further, FDOT did not follow its own specially prescribed procedure for certified DBEs with "special monitor" status, in that FDOT did not conduct a new 1992 on-site review. Instead, two months later, FDOT sent its December 14, 1992 denial letter. The FDOT employee who prepared the letter testified that the letter denial was based on her review of all the information already in FDOT's DBE file on Union Trucking, Inc., upon the audio tape of the old 1991 on-site review interview, and upon corporate records of the Secretary of State. The FDOT letter, however, closely tracked the DGS recommended order but denied recertification by FDOT on the basis of FDOT Rules 14-78.005(7)(c)1. and 2.c. and 14-78.005(7)(a) F.A.C. It also stated that Union Trucking, Inc. was not an independent business entity or a small business concern and that there was an "affiliate" relationship under FDOT rules due to "Susan [sic] Wilson." It renamed Robin Wilson and also extrapolated a great deal of financial information that appears to come directly from the DGS recommended order. As a result of FDOT's denial of its 1992 recertification application, Union Trucking, Inc. requested a formal hearing. During the progress of that case before DOAH, FDOT received a copy of an affidavit by Robin Wilson in which she stated that Union Trucking, Inc. only purchased parts and fuel from Pritchett Trucking because Pritchett's Lake Butler terminal was the least expensive and most convenient source. Ms. Wilson also stated that Union Trucking, Inc. had not received any loans from her father's companies in four to five years, and that there were no current outstanding loans. In an effort to negotiate the issues and resolve matters without formal hearing before DOAH, FDOT finally conducted an on-site review in July 1993. Documentation was provided by Union Trucking, Inc. to show that all recent transactions with any of Marvin Pritchett's companies were properly invoiced "arm's length" transactions and that Union Trucking, Inc. dealt with many other companies as well; that Union Trucking, Inc.'s old debts to Marvin Pritchett's companies had been retired with zero balances prior to Union Trucking, Inc.'s 1992 recertification application to FDOT; and that Union Trucking, Inc. had three trucks and trailers normally being used full-time in its business. Random samplings by FDOT's consultant during this on-site review confirmed the information in the possession of FDOT prior to the 1992 application for recertification, most of which had been provided and was already in FDOT's possession as early as April 30, 1991. If FDOT had inquired concerning any loans at the time it received the recommended order in September 1992, it would have determined that all loans to Union Trucking, Inc. from any of Marvin Pritchett's various enterprises had been paid off prior to Union Trucking, Inc.'s 1992 recertification application to FDOT. FDOT's consultant's report after the 1993 on-site review determined that there currently were no "affiliated" firms under FDOT rules. It also appears from the report that FDOT then accepted that Robin Wilson split her time between office management for Union Trucking, Inc., running her own company named "Robin Pritchett Trucking Inc.," and working for her father's "[Marvin] Pritchett Trucking Inc." Having clarified these matters, FDOT no longer had problems or concerns with such an arrangement. Union Trucking, Inc.'s records on file for contract work with FDOT through other contractors also reflected use of owned trucks and drivers employed by Union Trucking, Inc. FDOT then recertified Petitioner effective October 15, 1993. At the attorney's fee and costs hearing herein, FDOT presented evidence that it did not have the correct location address for Union Trucking, Inc. when its personnel went to the July 1993 on-site review. This evidence does not justify FDOT's 1992 denial. Union Trucking, Inc.'s corporate office had moved a few weeks previous to the 1993 on-site review. Since Union Trucking, Inc. and its lawyer had been in constant communication with FDOT during the litigation phase of the recertification denial case, consistently urging an on-site inspection, any failure by Union Trucking, Inc. to clarify the geographical relocation of its office in 1993 was either an oversight or an innocent miscommunication. This change of address was not noted in Union Trucking, Inc.'s 1992 reapplication because the move had not yet occurred when that reapplication was submitted in July of 1992. Obviously, FDOT did not use the 1993 failure to notify the agency of a change of address as a reason to deny recertification in 1992, and FDOT also did not consider it a sufficiently serious flaw to withhold recertification after the July 1993 on-site review. FDOT also presented evidence that Robin Wilson did not tell the agency that she owned 100 percent of another corporate entity, "Robin Pritchett (her maiden name) Trucking, Inc." until the July 1993 on-site review. FDOT's two on- site reviewers concurred that "Robin Pritchett Trucking," consisting of one truck, which was sporadically used to haul wood chips, was never any cause for FDOT's concern. Apparently, FDOT considers hauling wood products to be an entirely different industry than the hauling of highway aggregates, which is the type of work done on FDOT contracts and the type of work done by Union Trucking, Inc. While Robin Pritchett Wilson's "affiliation" with her own independent corporation, "Robin Pritchett Trucking, Inc.," possibly was the type of "affiliation" which she should have disclosed, pursuant to FDOT's DBE rule, on Union Trucking Inc.'s 1992 application for recertification by FDOT as a DBE, it is clear that FDOT did not know of this nondisclosure when the agency denied recertification in December 1992. FDOT did not deny recertification at that time for that reason. FDOT also did not consider such nondisclosure to be a sufficiently serious flaw so as to withhold recertification after the disclosure at the July 1993 on-site review. Also, FDOT never asserted that its personnel had been confused in 1992 between "Robin Pritchett Trucking, Inc." and "[Marvin] Pritchett Trucking, Inc." Therefore, this late disclosure does not justify FDOT's 1992 denial of certification. In its July 1993 on-site review, FDOT investigated but found no barrier to recertifying Union Trucking, Inc. under the statutes and rules FDOT administers. There were no barriers related to familial relationships, related to Robin Wilson's being an owner of her own corporation, related to her being a director of any corporation, related to her owning a nominal number of stock shares in Marvin Pritchett's several businesses, related to her use of Pritchett's desk or office equipment, related to Pritchett loans to Union Trucking, Inc., related to Mr. Lee's use of a special account, or related to any other factual reason cited in either FDOT's December 14, 1992 denial letter or the September 9, 1992 recommended order affecting DGS. Nonetheless, FDOT's consultant's closing comments in the 1993 on-site report sum up FDOT's continuing overall approach to Union Trucking, Inc., both before the 1993 on-site review and thereafter. This approach is to "continue to question" successful DBEs whose principals have successful families and successful corporate investments. He wrote: Because of the close family relationships and multiple companies owned or operated, this firm will continue to be questioned as to eligibility for the DBE program. Any concerns I have remaining can only be resolved through the actual job perform- ance and compliance on future projects. I strongly recommend a continued compliance report be addressed with detailed concerns to support the next certif- ication provided the firm is recertified.
Findings Of Fact On May 29, 1985, The Columbus Company submitted a bid to construct a rest area along I-95 in accordance with the specifications for State Job No. 70225-3410. The bid documents required the bidders to have 10 percent subcontractors from DBEs or submit documentation with the bid to show good faith efforts to meet this 10 percent requirement were made if the 10 percent goal is not met. Respondent maintains a list of businesses qualifying as DBEs and periodically publishes a directory of those firms so qualifying. This latest directory published by DOT prior to the bid opening on the contract at issue here was April 15, 1985. Respondent's Bureau of Minority Affairs maintains a current register and will advise any bidder so requesting whether of not a firm qualifies as a DBE or WBE. The invitation to bid provides the contractor's bid submission shall include the following information: The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted towards DBE and WBE goals. A description of the work each named DBE or WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. Oscar Pope was Petitioner's estimator on this bid and prepared the bid which was submitted. Pope sent letters to various DBE firms soliciting their participation as subcontractors in the project and put ads in the newspaper. Prior to submitting the bid Pope realized that he did not have the required 10 percent DBE participation and he contacted another company to inquire where he could get additional minority participation from truckers and was referred to UPF Trucking. Pope contacted UPF Trucking and Billy Montgomery of UPF told Pope that UPF could qualify as a MBE. Pope did not check the directory or call DOT to verify UPF Trucking's status as a MBE. In his bid submitted, which included DBE/WBE utilization form No. 1, Pope listed UPF Trucking as being certified by Florida DOT as a MBE. Including the subcontract Petitioner entered into with UPF Trucking brought the MBE participation to the 10 percent goal required by the contract and no documentation was submitted to demonstrate Petitioner had made good faith efforts to reach the required DBE goals but could not do so. Upon the opening of the bids for this project, Petitioner was the low bidder. When the MBE participation listed in the bid was checked, UPF Trucking was found to be not qualified as a MBE firm. UPF Trucking was not listed in the April 15, 1985, directory of qualified minority businesses or on any approved list maintained by DOT. Had Pope called DOT before submitting Petitioner's bid, he could have learned UPF Trucking was not a qualified MBE. Petitioner's bid was forwarded to DOT's technical review committee and good faith efforts committee and both of these committees recommended the bid be found non-responsive because of the failure to meet the DBE goal. The bid was declared non-responsive and the contract was awarded to the next lowest bidder.
The Issue Whether the Petitioner qualifies for a consumer's certificate of exemption as a "Religious Institution" or "Church" or as a "Charitable Institution" as defined in Chapter 212, Florida Statutes.
Findings Of Fact Petitioner was incorporated in the State of Florida as a nonprofit corporation on May 11, 1995. On February 21, 1995, Petitioner filed an application for a consumer's certificate of exemption as a charitable institution. The Department under its statutory powers denied the application and advised the Petitioner of his right to a hearing on his application. George B. Cooper is the incorporator president and treasurer of Petitioner. Mr. Cooper serves as the pastor of the Petitioner. Mr. Cooper is a Seventh Day Adventist and attended religious training with that denomination. He is not an ordained minister. The business office and business address of Petitioner is in Jacksonville, at the home of a friend of Mr. Cooper. Mr. Cooper resided in Jacksonville initially, and started his missionary activities there. He subsequently moved the mission to Daytona Beach, and resides in Jacksonville and overnights in Daytona Beach when engaged in mission work. Mr. Cooper leases one-third of a private residence located at 610 Winchester Street, Daytona Beach, Florida. Mr. Cooper provided receipts for $1075 for leasing this space from February, 1995, until July, 1995, and a letter from the landlord which indicates that she is aware that Mr. Cooper conducts religious services there. The leasehold includes a large meeting room with chairs for persons attending services and a podium from which Mr. Cooper leads religious services which include prayer, song and preaching. A small room is available with a cot and sleeping bag to provide a place for homeless to overnight. Mr. Cooper sleeps at the mission when in Daytona Beach. In addition the leasehold includes access to bath and kitchen facilities. Clothes and food are also stored at the mission which Petitioner provides to persons in need. These clothes and food items are gifts in kind obtained from individuals and organizations. Mr. Cooper does not maintain complete records of the items given to him or of the items which he gives away. Mr. Cooper testified that he received $4667 between May and December, 1994 which included $4000 which he received from distribution of religious tracts and pamphlets. Mr. Cooper testified that his expenditures between May and December, 1994 were $5150. This included expenses of $2100 for travel, rent and utilities, $383 for office materials, $100 for literature and gifts of food, clothes and money in the amount of $2567. None of the gifts of money were to other religious or charitable organizations. The Petitioner's mission in Daytona Beach provides clothes, food and minimal temporary shelter to homeless persons and others in need, together with preaching the gospel. To this end, Mr. Cooper conducts church services at regular times during the week and is available to provide care to those who come by his mission 24 hours a day when he is in Daytona Beach.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the application of the Petitioner as a religious institution be approved. DONE and ENTERED this 7th day of September, 1995, in Tallahassee Florida STEPHEN F. DEAN, 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 September, 1995. APPENDIX The Department filed proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Respondent's Recommended Order: Findings: Paragraphs 1, 2 Paragraphs 1, 2 Paragraphs 3, 4 Subsumed by Paragraphs 3, 4 Paragraph 5 Subsumed in part in 3, 4; and rejected in part as irrelevant Paragraphs 6, 7 Subsumed in Paragraph 1 Paragraph 8 Irrelevant There is no allegation that the application was incomplete Paragraph 9 Irrelevant except that the Department automatically considers alternative basis for exemptions Paragraph 10 Subsumed in Paragraph 1 Paragraph 11 Subsumed in Paragraph 6 It is irrelevant that there are no signs or ads or telephone These are not required of a church. Paragraph 12 Deleted from Respondent's findings Paragraph 13 Statement of Case Paragraph 14 The listing of items is not necessary as a finding. Paragraph 15 Subsumed in Paragraph 6 Paragraphs 16, 17 Subsumed in Paragraph 4 Paragraph 18 Subsumed in Paragraph 5 Paragraph 19 Irrelevant and invades the province of the fact finder Paragraph 20 Conclusion of Law COPIES FURNISHED: George B. Cooper, Pastor 2172 McQuade Street Jacksonville, FL 32209 and 610 Winchester Street Daytona Beach, FL 32114 Nancy Francillon, Esquire Lisa M. Raleigh, Esquire Assistant Attorneys General Office of the Attorney General The Capital-Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact At some point in late 1984 or early 1985, Respondent, DOT, solicited bids for its Project Number 77030-3510 to be accomplished in Seminole County, Florida. Three bids were submitted. The bid by Petitioner, Macasphalt, was in the amount of $186,367.05. The two other bidders were Martin Paving Company, whose bid was for $196,391.99 and Orlando Paving whose bid was in the amount of $213,054.56. Petitioner's bid was the lowest by approximately $10,000.00. This particular project required the contractors to meet certain goals in the area of Disadvantaged Business Enterprises (DBE) and Women-Owned Business Enterprises (WBE). The goals for this project were 7% for DBE and 3.05% for WBE. In its bid, Macasphalt showed that it would award 20.14% of the contract to DBE's but only 2.01% of the contract to WBE's. Martin Paving Company, on the other hand, whose bid was approximately $10,000.00 higher, indicated that it would award 19.19% of the contract to DBE's and 3.04% of the contract to WBE's. Orlando Paving, which was the highest bidder, showed 2.4% WBE. As a result of the fact that Petitioner failed to achieve 3% WBE, whereas the second lowest bidder exceeded the 3% WBE goal, Respondent declared Petitioner's bid nonresponsive for failure to meet the WBE goal and recommended award of the contract to the second lowest bidder, Martin Paving, even though Martin's bid was approximately $10,000.00 higher. The goals set by DOT must be met at the time of letting of the contract. If a contractor cannot meet these goals, he must submit satisfactory evidence of his good faith efforts to meet them in order to be considered responsive. In regard to the goals, DOT issues a monthly list of certified DBE/WBE contractors listed by the type of work they are qualified to do and the geographical area in which they operate. According to Mr. LaLonde, Macasphalt routinely sent out letters to a majority of the subcontractors they feel could do the work generally and a follow-up letter is sent monthly to those subcontractors who do the type of work needed in a particular contract. These letters are sent monthly because Macasphalt bids frequently on DOT contracts and bid lettings are done on a monthly basis. This procedure gives, they feel, DBE's and WBE's information on jobs on which the Petitioner is bidding and keeps them informed. In the instant case, to solicit WBE's, on January 9, 1985 Petitioner sent out letters by certified mail to 47 DBE/WBE's requesting bids on several projects including the one in question here and naming areas in which it anticipated issuing subcontracts. Items to be subcontracted on the instant project included. barricades and signs guard rails landscaping painting and striping trucking, and concrete. No solicitation was made of DBE/WBE's for quotes on asphalt work because that is Petitioner's prime business and it is, in the opinion of its officers, not feasible to subcontract work they do themselves. When it became obvious that Petitioner could not achieve the 3.05% WBE goal, Petitioner, pursuant to the terms of the contract documents, submitted a summary of its good faith efforts to achieve the WBE goals with the contract bid. The Petitioner's summary of good faith effort includes a "remarks" sheet on which the following comments exclusively are made: "We have exceeded DBE goal with a total of 20.14%. However, have only attained 2.01% FBE goal. All subcontract items except guardrail were reflected in DBE or FBE quotes received. No DBE or FBE quote was received for guardrail item." In addition, Petitioner submitted a form letter entitled, "Good Faith Efforts" apparently used in numerous contracts, which requires only the insertion of two numbers and two dates and copies of two different letters in blank sent to subcontractors on apparently a routine basis. In addition to the above, Petitioner submitted two copies of DOT's DBE/WBE Directory, one dated September, 1984 and the other dated January, 1985 in which various subcontractors are identified with check marks, the explanation for which is contained in the form letter referenced above. No explanation was made as to why some WBE's were not solicited. Upon receipt of Petitioner's bid with the good faith explanation included, it was submitted to Respondent's Good Faith Efforts Review Committee. This committee deals only with an analysis of the good faith efforts made by bidders. It has been in operation since its creation in August, 1984 and applies the standards established in Rule 14-78, F.A.C. Here, the committee evaluated Petitioner's good faith effort as outlined in the material submitted with the bid and, based on Petitioner's submission, concluded that Petitioner was non-responsive because its good faith efforts, as documented, were insufficient. The committee based its conclusion on the following considerations: Petitioner did not meet the seven day requirement for notice by certified mail. The sample letter indicated "certified mail" but no copies of receipt showing it was sent by certified mail or to whom it was sent by certified mail were included. All potential subcontractors (WBE's) were not contacted. The ability of the contractor to do the work himself "asphalt) will not justify failing to achieve the goal. Whether or not other bidders met the goal. The remarks sheet was inaccurate and inadequate. The explanation about failing to solicit from those subcontractors who did not do business in Seminole County is inconsistent. Some were solicited and some were not. One contractor (Fran) who operates in three categories and who works statewide, was not solicited by the Petitioner in any category. The criteria as set forth in Rule 14-78 are not exclusive or necessarily determinative. There is no specific definition of good faith efforts. The committee is given the latitude to make a judgment measure of the bidder's efforts opposed to the criteria set forth in the rule. Mr. Pitchford, Chairman of the committee, indicated that after the committee had been in operation for a while, the approach taken toward looking at the criteria set forth in the rule was more strictly and severely applied. No notice of this change in approach was set to any bidder, however Petitioner contends that this was misleading and that it submitted them on a previous successful demonstration of good faith efforts. In October, 1984 it submitted a bid on a contract which did not meet the DBE goal. Nonetheless, the evidence of good faith which it submitted at that time was not questioned and Petitioner was awarded the contract. This good faith information was the same kind of information as submitted here which was considered inadequate. No documentation to support any of this was forthcoming, however. Since each case must be taken and considered on its own merits, even if true, this is not necessarily inconsistent. Petitioner readily admits that it did not submit requests for bids to al; DBE/WBE subcontractors in the directory. However, it does claim that for the most part, it submitted solicitations to every WBE listed in the directory that worked in the specialty needed and in the geographical area of the project. Petitioner defends its exclusion of potential subcontractors on the basis that, for example, they had no experience with those subcontractors and were not familiar with them. In most cases, Petitioner left out companies that were not known to it. Mr. LaLonde could not be sure whether Petitioner solicited any potential subcontractor not solicited by Petitioner previously. He is certain, however, that Petitioner did solicit all subcontractors on the list who had been solicited previously. In any event, it is important to the Petitioner to know the subcontractors and how they perform because Petitioner, as the prime contractor, is responsible for the work whether it or its subcontractor accomplishes it. It is for this reason, the lack of familiarity with a subcontractor and its performance, that it did not solicit some WBE's which operate statewide. Petitioner has used many WBE's before and has never failed, it claims, to meet WBE goals prior to this occasion. It has previously failed to meet DBE goals, however, but still was awarded the contract if it was the low bidder. It is apparent, then, that if the above is true, Petitioner's demonstrated good faith efforts were considered satisfactory on those occasions. Based on that experience, Petitioner felt that the procedures used here which it claims had previously been demonstrated to be satisfactory, were again sufficient. It is significant to note that while the fact of the bid submissions reflects a difference of approximately $10,000.00 between Petitioner's bid and that submitted by the next lowest bidder, a computer analysis run on this solicitation reflects a different figure. On the computer analysis, Martin Paving's bid is listed at slightly over $203,000.00 as opposed to the bid face of slightly over $196,000.00. If the $203,000.00 figure is used, the 3.05% goal would not be met. This discrepancy was explained by Mr. Haverty who indicated that the initial figure submitted by the contractor on the bid form is used to assess whether the DBE/WBE goals are met. The issue of good faith effort is raised at a later date. Where, as here, it is determined that the original price is in error and the actual price means that the bidder has failed to meet the goal, if the error is less than 10%, the bid may still be considered responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner's bid on State Project Number 77030-3510, in Seminole County, Florida, be rejected as non-responsive for failure to meet the WBE goal. RECOMMENDED in Tallahassee, Florida this 20th day of June, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 20th day of June, 1985. COPIES FURNISHED: William B. Miller, Esquire Tower Place, Suite 600 3340 Peachtree Road, N.E. Atlanta, GA 30326 Larry D. Scott Staff Attorney Department of Transportation 605 Suwannee Street Tallahassee, FL 32301 Paul A. Pappas Secretary Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32301
The Issue The issue in this case is whether Petitioner and his family are entitled to be provided developmental services through Respondent.
Findings Of Fact Petitioner Wayne McDuffy (“Wayne”), presently age 9, is mentally retarded as a result of Down’s Syndrome. It is undisputed that he is eligible to receive developmental services through Respondent Department of Children and Families (“DCF”). Wayne has been known to DCF since at least 1996 or 1997 and has received services at some time(s) in the past. From February 2000 through the present, however, Wayne has not received services. Nevertheless, at times during this latter period, as will be discussed below, Wayne has been a “client” of DCF. In February 2000, Wayne’s mother, Deborah Moore (“Moore”), made application to DCF, on behalf of her son, for developmental services. She desired, and continues to request, personal care assistance and residential placement to help manage Wayne, who is occasionally violent and aggressive towards others, including Moore’s younger child. Funding for the services that DCF provides to the developmentally disabled is available though the Individual Family Supports Program (“IFS”), which the state pays for out of general revenue, and the Home and Community-Based Services Waiver Program (the “Waiver”), for which the Florida Medicaid Program (“Medicaid”) pays with federal and state monies. When Moore applied for services in February 2000, she did not know about, or appreciate the differences between, these two funding sources. Some time after February 2000, probably in the summer of that year, a DCF caseworker verbally notified Moore that Wayne had been accepted into the Waiver and would soon be receiving services as a client of DCF. Moore kept in telephone contact with DCF and, in September 2000, verbally notified the local office that she was moving to a new address, which she provided, together with a phone number. Services, however, never commenced. Meanwhile, on October 3, 2000, DCF assigned Wayne’s case to an interim support coordinator at Advantage in Support, Inc. (“Advantage”), a third-party provider under contract with DCF. An employee of Advantage placed telephone calls to, and personally visited, Moore’s old residence, i.e. the one from which she and her family had moved in September 2000. That phone number had been disconnected, however, and no one came to the door at the house where Moore and her family no longer lived.1 On November 2, 2000, Advantage returned Wayne’s file to DCF. Back at DCF, Wayne’s file came into the hands of Thelma Bass (“Bass”), then a Medicaid Waiver Specialist. Bass left a telephone message for Moore at her place of employment but did not receive a return call.2 Thereafter, Bass drafted a letter to Moore3 dated November 28, 2000, which read: You had requested that Wayne McDuffy be placed on the Medicaid Waiver program. This we did and an interim support coordinator was assigned to him. The agency tried without success to set up appointments to see Nelson. You never responded to her calls. We would love to assist you in providing the needed services for your son, however, this is impossible as you refuse to cooperate with the independent support coordinator.[4] It is important that you contact us if you desire to receive and/or continue receiving services from the Developmental Disabilities Program. If I do not hear from you by December 7, 2000, we will close this case. We love to hear from you, please call me at 305-808-6236. Bass normally sends letters such as this one by certified mail. In this particular instance, however, she did not use certified mail.5 Nor did Bass personally put this letter into the mailbox. Rather, she directed that it be sent out by others in the ordinary course of her office’s business. For reasons unknown,6 Moore did not receive the November 28, 2000, letter.7 Being thus unaware of the deadline that Bass had imposed, Moore could not and did not meet it; in other words, she failed timely to respond to the letter she had not seen. On December 15, 2000, Bass closed Wayne’s file, without first taking any affirmative steps to confirm the actual delivery of the letter of November 28, 2000, which would have been Moore’s only notice of the critical deadline. No notice of any kind was contemporaneously provided to Moore or Wayne regarding the closure of Wayne’s file. Although Moore was clueless as to what had occurred, the closing of Wayne’s case would have disastrous effects on his (and her) substantial interests. Because, when Wayne stopped being a client, his “slot” in the Waiver was given to someone else——and, as will be seen, would be very difficult to get back. In early 2001 (probably January), Moore contacted DCF to inquire about the services that she had been promised but had yet to receive. She was informed that her son’s case had been closed, and that she would need to re-apply. DCF did not tell Moore, then or ever, that she could request a hearing to challenge the agency’s decision to close Wayne’s file based on her failure to respond to Bass’s November 28, 2000, letter (which Moore had not received and hence remained ignorant of). Moore did as she was told. On April 12, 2001, she again applied for services on Wayne’s behalf, signing an application for participation in the Waiver. She still did not know about the different sources of funds (Medicaid and IFS) for developmental services or appreciate how the issue of funding sources might impact upon her request for services. On April 20, 2001, a district-level Crisis Identification Tool Review Committee (the “Committee”) met to consider Wayne’s new application for services. This meeting was necessary because, by this time, slots in the Waiver were so limited that DCF was able to accept only those applicants who were in “crisis” as determined by an internal, unpromulgated “Crisis Identification Tool.”8 Applicants deemed not to be in crisis were now being placed on a waiting list, to be served in date order, based on the date of becoming a client of DCF. The Committee decided, on April 20, 2001, that Wayne was not in crisis. Thus, he was placed on the waiting list, with an eligibility date——which determines his place in line——of (or around) April 12, 2001. No one at DCF took the trouble, in April 2001, to formally notify Wayne or Moore, in writing, that the Committee had found Wayne not to be in crisis, much less to advise them of the consequences of that decision or of Wayne’s right to request an administrative hearing. Nor did DCF inform either of them of its determination, or of Wayne’s right to challenge such decision, in May, June, July, August, September, October, or November of 2001. It was not until December 17, 2001——eight months after the fact——that DCF finally sent Wayne a letter (by certified mail), in care of his mother, telling him about the agency’s decision and notifying him of the right to request a hearing. The December 17, 2001, notice of agency action, which was signed by Evelyn Alvarez (“Alvarez”), Program Operation Administrator, provided in pertinent part:9 We regret to inform you that your request cannot be granted within the limits of the Department’s appropriated general revenue funds unless an individual is in crisis as determined by application of the Department’s Crisis Identification Tool. Using the Crisis Identification Tool to assess your situation, the Department finds that you are not in crisis. Florida law, therefore, prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Emphasis added). In response to the foregoing letter, Moore timely requested a hearing on Wayne’s behalf. At the first session of the final hearing, which took place on May 30, 2002, DCF disclosed the November 28, 2000, letter and represented that Wayne’s file had been closed based on Moore’s failure to respond to that letter. In addition, at the May 30, 2002, hearing, DCF admitted certain facts that revealed the consequences of DCF’s decision to close Wayne’s file: (1) Wayne lost his slot in the Waiver effective December 15, 2000; (2) At the time Wayne was approved for the Waiver, he did not need to be in crisis to receive a slot, but as of April 2001, he did need to be in crisis to avoid being placed on a waiting list; (3) Had Wayne’s file not been closed, he would have remained in the Waiver irrespective of whether he was in crisis, provided he continued to meet the Medicaid eligibility criteria; and (4) Wayne meets the Medicaid eligibility criteria for the Waiver. In sum, therefore, if Moore had received and responded to Bass’s November 28, 2000, letter, then, in all likelihood, Wayne would be receiving developmental services today under the Waiver. The undersigned continued the final hearing to allow Moore an opportunity to amend Wayne’s petition to challenge the obviously significant decision to close Wayne’s case in December 2000 (which was separate and distinct from the agency’s decision, made in April 2001 but not communicated to the substantially affected party until December 2001, that Wayne is not in crisis according to DCF’s criteria). On June 7, 2002, Moore filed an amended petition on behalf of her son, thereby placing DCF’s December 2000 decision in issue. On June 27, 2002, without first seeking or obtaining leave, DCF filed a “corrective letter” from Alvarez to Wayne dated June 27, 2002. This letter (which was sent by certified mail) provided in pertinent part:10 You recently[11] received a letter, dated December 17, 2001, responding to your request for general revenue funded services from the Developmental Disabilities program.[12] Upon our review of the letter sent to you, we discovered that the letter contained language addressing the Department’s Crisis Identification Tool. This language does not apply to request for General Revenue funded services. The first paragraph of your letter should read as follows: We regret to inform you, as a conclusion of law,[13] that your request cannot be granted within the limits of the Department’s appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.066(4), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Italics in original). At the second session of the final hearing on September 3, 2002, DCF’s attorney relied upon the “corrective letter” to argue that the question whether Wayne is in crisis for purposes of the Waiver is not ripe for adjudication because “the process is still going on,” and to contend that Wayne will some day have an opportunity to litigate all Waiver-related issues in a Medicaid “fair hearing” before a DCF hearing officer (assuming, that is, DCF ever gets around to giving Wayne a clear point of entry into such a proceeding, which it still had not done as of September 3, 2002). DCF’s legal contentions will be discussed in the Conclusions of Law below. However, the undersigned rejects here, as factually incorrect, the assertion that DCF somehow has not yet determined whether Wayne is in crisis. Rather, as previously found, the Committee met and decided the “crisis” issue against Wayne on April 20, 2001, and DCF belatedly gave him a clear point of entry to challenge that decision via Alvarez’s letter of December 12, 2001. Wayne then properly exercised his right to challenge DCF’s “crisis” decision. These are matters of historical fact that DCF cannot make disappear through the magic of a revisionist “corrective letter.” Ultimate Factual Determinations DCF’s momentous decision to close Wayne’s file in December 2000 was arbitrary and capricious, in that the action was taken based on Moore’s failure to respond in time to a letter that she had never received——which latter fact DCF would have known had it exercised reasonable efforts to confirm whether Moore had actual notice of the deadline that Bass had unilaterally imposed. A reasonable governmental official would not make a decision of similar detriment to another person’s substantial interests, based solely on the latter’s silence, without first attempting to verify that the adversely affected person was aware of his or her obligation to speak.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order that, one, rescinds the preliminary agency action taken in December 2000 which resulted in the closure of Wayne’s case and, two, grants all relief necessary to place Wayne in as favorable a position as he would have been in today were it not for DCF’s wrongful closure of his case on or about December 15, 2000. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 7th day of February, 2003.
The Issue Whether Respondent violated Section 760.10(1)(a), Florida Statutes, by terminating Petitioner's employment on account of his marital status.
Findings Of Fact Watkins was employed by Greater Bethel, a congregation within the AME (African Methodist Episcopal) Church, from June 2000 through August 8, 2001. Respondent is an employer within the meaning of Chapter 760, Florida Statutes, popularly known as the Florida Civil Rights Act (FCRA). At all times material to this case, Respondent acted through its duly-authorized representative, White, who served as Greater Bethel’s senior minister and chief executive officer. At relevant times, Greater Bethel provided an AIDS outreach ministry. White hired Watkins to direct its AIDS prevention programs, under the direct supervision of Rev. Marilyn Hardy (Hardy). It was also White who eventually fired Watkins. Watkins is gay, and his sexual orientation was known to White at all relevant times. Throughout his decade-plus tenure at Greater Bethel, White had hired other gay individuals, married and single, to work there. In Watkins' view, White hired Watkins for the AIDs prevention position precisely because Watkins was gay (as well as African-American) because, in Watkins’ words, the program ". . . targeted black men who have sex with men. " Yet, Watkins contends, the governing bodies of the AME Church, and individuals who served on them at times relevant to this case, were opposed to allowing practicing homosexuals to serve in positions of spiritual leadership within the Church. It is undisputed that religious organizations have a constitutional right to ordain their clergy without the constraints imposed by anti-discrimination laws applicable to jobs which are performed at the church, but not specifically related to its religious mission. While Watkins continued to work in the AIDS program, and White continued as Greater Bethel's pastor, both men campaigned for election to positions involving spiritual leadership. Soon after Watkins was hired in June 2000, he sought election to the Board of Examiners, which represents the South Florida Conference of the AME Church (the Board). Election to the Board is a prerequisite to becoming ordained as an AME clergyman. For Watkins to be considered for admission to the Board, his application needed to be sponsored by an incumbent board member. Though not required to do so, White, a Board member, supported Watkins' application. Watkins' application was denied by the Board in October 2000. Watkins argued, but did not prove, that his failure to be elected to the Board and ultimately ordained, as well as his employment termination, was related to Watkins' marital status. Watkins claimed that by remaining single, Watkins posed an obstacle to White's prospects of being elected Bishop of Florida. The only competent evidence regarding White's candidacy for Bishop of Florida was provided by White himself, who testified that from November 1996 to November 2000, White offered himself as a candidate for that post. White's candidacy was unsuccessful. Watkins resented the fact he had not been elected to the Board and, therefore, had no chance to be ordained. Watkins was convinced that he was rejected because the then Bishop felt that gays seeking to serve in the AME ministry should at least attempt to cover up their sexual orientation by participating in a sham marriage. Watkins' theory is based entirely upon his own speculation, and is unpersuasive. Watkins admits that White said nothing about Watkins’ marital status, or White's candidacy for Bishop of Florida, until May 2001. This was some five months after White's campaign for Bishop had ended. Watkins fell far short of proving he was fired on account of his marital status. It appears instead, that he fell out of favor with his boss, White, months after he was hired and months after White's campaign for Bishop had ended when in May 2001, he launched a protest of AME's failure to elect him to the Board. Watkins wanted White's support on this issue and was upset that it was not forthcoming. White, for his part, was upset that Watkins wanted to challenge the Board with regard to what Watkins perceived to be the former Bishop’s bias against gays in the ministry. Relations between Watkins and White deteriorated from May 2001 to August 2001, when White fired Watkins and demoted Hardy to perform White's job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order which DENIES Petitioner's Charge of Discrimination and dismisses his complaint. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 24th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David H. Nevel, Esquire Nevel & Greenfield, P.A. 11900 Biscayne Boulevard, Suite 806 North Miami, Florida 33181 Robert L. Norton, Esquire Allen, Norton & Blue, P.A 121 Majorca, Suite 300 Coral Gables, Florida 33134 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue As stated by the parties in the joint stipulation to limit issues: whether the costs of $70,455.00 associated with the Moore Haven office of Petitioner are eligible costs under the Community Services Block Grant (CSBG) administered by Respondent.
Findings Of Fact At all times material to the issues of this matter, the Petitioner was the grantee of a community services block grant. Generally, the Department enters into CSBGs for a defined period of time for defined work to be performed by the grantee. The work normally entails defined services to low income people. In this case, the COFFO was to provide personnel, materials, services, and facilities as set forth by their agreements to low income persons in Collier, Dade, Glades, Okeechobee, Polk, Hardee, Indian River, DeSoto, Highlands, Hendry, Lee, and Palm Beach Counties. At all times material to this matter, COFFO acknowledged that it is governed by applicable laws and rules related to CSBGs, including, but not limited to: The Omnibus Budget Reconciliation Act of 1981 (P.L. 97-35, as amended), 45 C.F.R. Part 96, and Chapter 9B-22, Florida Administrative Code. Rules governing CSBGs require written documentation both as to the person served and the activity or service provided to such individual. On September 14, 1995, the Department notified COFFO that an audit had determined a lack of justification for funds to continue operation of the COFFO Moore Haven field office Such notice claimed that the field work performed by an independent audit firm found "no documentation to support the expensing of CSBG funds at the Moore Haven field office." The Department invited COFFO to provide the needed documentation to support its claim for reimbursement. For the three year period at issue, COFFO was unable to provide documentation for the individuals served at the Moore Haven office. While COFFO claimed twenty-seven persons appeared at that office for service, it also maintained that such persons would have been routed to the COFFO office at Immokalee for services. Regardless, neither office produced records to verify that eligible individuals received eligible services. COFFO maintains that since it met the overall terms of its agreements, whether at the Moore Haven office or elsewhere, it should be entitled to all funds claimed. Additionally, COFFO claims that since the Department did not cite inadequate records at Moore Haven to them at an earlier time, they were unable to correct any deficiencies timely and thus avoid the issue inherent in this case. Normally, exit interviews conducted by Department staff incidental to a monitoring visit alert grantees of any deficiencies noted during the visit. In this case, Department staff attempted a monitoring visit at Moore Haven, but an exit interview was not conducted. COFFO did not have staff or anyone at the location at the time of the visit. At all times material to this case, the major programs for COFFO were implemented at its main office in Homestead and a field office at Immokalee. The office at Moore Haven did not have equipment or other resources to provide services. In the past, although not documented as to time, the Moore Haven office had been used to distribute emergency food, for job and budget counseling, and for recreation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Community Affairs enter a final order determining the costs associated with the Moore Haven office of Petitioner to be ineligible under the community services block grant program. DONE AND ENTERED this 23rd day of September, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5694 and 95-5695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 2, 3, 5, and 9 are accepted. With regard to paragraph 1, with the clarification that it is accepted that COFFO provided services to migrant and seasonal farmworkers but could have provided services to any eligible recipient; the paragraph is otherwise accepted. The first three sentences of paragraph 4 are accepted; the remainder is rejected as contrary to the weight of the evidence or argument of law. With the clarification that forms were not maintained at the Moore Haven office demonstrating eligible services were rendered to eligible recipients, paragraph 6 is accepted. Paragraphs 7 and 8 are rejected as irrelevant or immaterial to the issue of this case, or not supported by reference to the record. The first two sentences of paragraph 10 are accepted; the remainder is rejected as contrary to the weight of credible evidence or irrelevant as stated. With regard to paragraph 11, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant or contrary to the weight of the credible evidence as stated. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Arturo Lopez Coalition of Florida Farmworker Organizations, Inc. Post Office Box 388 Homestead, Florida 33090 Pedro Narezo Coalition of Florida Farmworker Organizations, Inc. Post Office Box 388 Homestead, Florida 33090 Barbara Jo Finer Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Carol Soliz, Board Chairperson Coalition of Florida Farmworker Organizations, Inc. P.O. Box 1987 Sebring, Florida 33871-1987 James F. Murley Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
