The Issue Whether the Respondent, School Board of West Palm Beach County, Florida, (School Board) should reject the bid of the Petitioner, Copyco, Inc. d/b/a Toshiba Business Solutions Florida (Copyco or Petitioner), and approve a contract with the Respondent, Ikon Office Solutions, Inc. (Ikon), should reject the bid of Ikon and approve a contract with Copyco, or should reject all bids and re-bid the contract.
Findings Of Fact On August 5, 2005, the School Board issued an Invitation to Bid (ITB) Number 06C-10B entitled “Term Contract for Copier on a Fixed Cost-Per-Copy. ” The School Board sought to award the Contract to the lowest responsive bidder. The School Board sought several different copiers with different copying rates. All rates were for copies per minute. The School Board did not guarantee any level of use for the copiers. Ikon is the current vendor for copiers provided to the School Board. Ikon and the School Board have enjoyed an amicable and successful working relationship. The subject ITB was available to vendors in an electronic format through a company known in this record as “RFP Depot, LLC.” RFP Depot, LLC is a private company located outside the State of Florida that posts invitations to bid, receives responses from vendors, and transmits information to entities seeking vendors. In this case, they contracted with the School Board to electronically present and respond to the instant ITB. No potential vendor timely protested the terms or specifications of the ITB when it was posted. That is to say, all of the terms of the ITB were accepted by the parties to this action. To prepare the ITB specifications, the School Board utilized information submitted by Ikon for the copiers it provides (manufactured by Canon) to draft the ITB. Karen Brazier exchanged e-mails with Ikon to obtain specifications and used information available from Buyers Laboratory, Inc. (BLI) to complete the ITB. Ms. Brazier did not ask any other vendor or manufacturer to submit data regarding its copiers before completing the ITB. Vendors and manufacturers other than Ikon and Cannon do produce copiers that can meet or exceed the copier requirements of the ITB. Ikon did not draft the instant ITB. Ms. Brazier was solely responsible for the terms of the ITB. The original due date for responses to the ITB was extended from August 29, 2005 to August 31, 2005, due to Hurricane Katrina. Vendors interested in the Contract submitted questions regarding the ITB to RFP Depot, LLC, which then transmitted the inquiries to the School Board. All questions with the answers were posted by RFP Depot, LLC so that all vendors were privy to the information posted for this ITB. Only three bidders timely submitted responses for this ITB: Axsa Document Solutions, Inc. (Axsa); Copyco; and Ikon. The Axsa bid is not at issue in this proceeding. Although it was the lowest bid received, it was disqualified and was not considered for the award. Axsa did not protest that finding. Copyco was the second lowest bidder. John Gans, a major account executive with Copyco, was the primary author of the bid submitted by the Petitioner. Mr. Gans had never used the RFP Depot, LLC system before but personally completed the information for the ITB and submitted it for consideration in a timely manner. The ITB included a chart entitled “Bid Summary Document.” That chart required the vendors to list the copiers proposed for each category by manufacturer and model number. All of the “Group 1” copiers were required to meet certain specifications. The “Estimated Yearly Total” was derived by multiplying the cost-per-copy for each of the Group 1 copiers times 400,000,000 (the number of estimated copies per year). For purposes of computing a cost the estimate for the number of copies was fixed but not guaranteed. In an attached section to the ITB, vendors were required to include additional information regarding the copiers proposed in the Group 1 categories. That information noted the copier proposed with a separate cost-per-copy rate for each of the three different Group 1 categories. Although the price computed for the award was based on the aggregate cost of the copiers, the ITB required that the individual copier breakdown costs be disclosed in the addendum material. When he submitted the bid proposal to RFP Depot, LLC, Mr. Gans believed he had listed a Toshiba e600 copy machine for the category 3 machine of Group 1. In fact, the information attached in the separate information required by the ITB identified the Toshiba e600 and noted its cost per copy in the individual copier breakdown. The Toshiba e600 meets or exceeds all specifications for Group 1, category 3 of the ITB. Group 1, category 3 of the ITB required a machine capable of producing 55 copies per minute. The Toshiba e520 copier is rated at 52 copies per minute. When Copyco’s proposal for this ITB was transmitted by RFP Depot, LLC to the School Board, the proposal identified the Toshiba e520 as the copier listed under the Group 1, category 3 chart. Without considering the attached information provided in the addendum to the proposal, the School Board determined that Copyco’s bid must be disqualified since the Toshiba e520 is not rated to produce 55 copies per minute. Accordingly, the Copyco bid was disqualified and Ikon (the highest bidder of the three submitted) was deemed the only responsive bidder to the ITB. All of the Ikon copiers bid met the specifications of the ITB. At the time the School Board determined to award the bid to Ikon, it did not deem material to the instant award Ikon’s debarment by Hillsborough County, Florida. In April 2005, Ikon was awarded a contract in Hillsborough County to provide copiers and related services based upon another bid solicitation. In that bid, Ikon failed or refused to execute an agreement for the copiers. As a result, the Board of County Commissioners for Hillsborough County, Florida decided to debar Ikon for a period of two years. The debarment precludes Ikon from doing business with Hillsborough County for a two-year term. On August 31, 2005, the date the proposals were due in this case, Ikon knew or should have known that Hillsborough County had decided to debar it from doing business with Hillsborough County. The instant ITB required every bidder to certify that “neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any State or Federal department/agency.” It is undisputed that Ikon did not notify the School Board that it was debarred by Hillsborough County. Ikon has challenged Hillsborough County and filed suit against it for the debarment. As of the time of hearing in this cause, that suit was unresolved and remained pending in federal court. The electronic listings for debarred companies maintained for the State of Florida and the federal government does not include any of the bidders for this ITB. The School Board did not consider the erroneous listing of the Toshiba e520, instead of the Toshiba e600 as the Group 1, category 3, listing to be a minor irregularity of the bid submission. The School Board did not consider the erroneous omission of the debarment from Hillsborough County a disqualifying offense for Ikon. When compared to the Copyco submission, the award of the ITB to Ikon will result in higher copier costs incurred by the School Board. Copyco did not refuse to execute an agreement with the Toshiba e600 as the Group 1, category 3 copier. In fact, Copyco has represented it will do so as that was the machine clearly identified in the addendum materials. In researching the debarment, the School Board made a telephone call to Hillsborough County to ascertain facts pertinent to the debarment. Any negative information related to Ikon was deemed irrelevant to the instant ITB. The Copyco protest to the intended award to Ikon was timely filed. Copyco intended to bid the Toshiba e600 in Group 1, category 3 of the instant ITB. The Toshiba e600 is identified throughout the bid submittal including the proposed transition plan. To have awarded the contract to Copyco with the Toshiba e600 noted as the Group 1, category 3 copier would not have afforded the Petitioner a competitive advantage as that machine was clearly denoted. The cost to the School Board would not have changed but would have been less than the cost proposed by Ikon. Even before a final decision was reached on this contract and before the posting of the award, Ms. Brazier was exchanging e-mails with Ikon regarding the transition under the new contract. Ms. Brazier did not make her supervisor fully aware of the Copyco proposal (as supported by the addendum materials) and did not believe the Ikon bid should be rejected for the failure to disclose the debarment. The School Board’s purchasing manual provides, in pertinent part: The following are reasons a bidder may be declared nonresponsible: * * * D. The bidder does not have a satisfactory record of integrity, or the bidder is currently debarred or suspended by the District or other State of Florida jurisdiction... Ms. Swan did not investigate Ikon’s debarment until after the posting of the award. The School Board has taken the position that the Hillsborough County debarment does not preclude the award of the contract to Ikon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a Final Order that rejects all bids for the contract. S DONE AND ENTERED this 9th day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northwest Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael J. Glazer, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 James F. Johnston GrayRobinson, P. A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Michael E. Riley, Esquire Gray, Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Steven A. Stinson, Esquire School Board of Palm Beach County Post Office Box 19239 West Palm Beach, Florida 33416
Findings Of Fact On June 4 and 5, 1981, Petitioner John A. Love sat for the general contractor's licensing examination at Bayfront Auditorium in Miami, Florida. The exam which was administered consisted of three parts. The first part was given the morning of the first day. The second part was given the afternoon of the first day and the third part was given the second day. The Petitioner Love arrived at the auditorium approximately twenty minutes prior to the scheduled starting time of the June 4th exam. Upon arrival the Petitioner Love discovered that the doors to the auditorium were locked and he was required to remain outside in the rain until the doors were open at approximately 7:00 a.m. Once inside the auditorium, the Petitioner Love was given an assigned seat which was located in the rear right center of the room. After being seated, the Petitioner was given the plans and specifications for the exam and told not to open or observe them until told to do so. At about 7:30 a.m. a proctor instructed all examinees to check their examination area to determine if they each had a set of plans and specifications which should have consisted of fifteen pages of plans and nineteen pages of specifications. Examinees were instructed to raise their hands if they did not have all exam materials. The proctors repeated the instructions regarding the number of plans and specifications two or three times. Examinees were also instructed to count the number of pages of plans and specifications in their booklets. After these instructions were given, the examinees were given thirty (30) minutes to study their plans and specifications. At no time prior to the commencement of the construction examination did Petitioner Love raise his hand to indicate he was missing any exam materials. The Petitioner Love did not check his plans and specifications when instructed to do so by the proctor. The construction examination began after the instructions were completed. At that time, all examinees were instructed to open their examination booklets. Inside the booklet was a cover sheet on which was written "Important Instructions--Read Carefully." On the same page was an instruction detailing both the number of pages and plans that the examinee should have and a brief description of what each page should contain. At the end of the instructions was printed, "If you do not have all of these sheets, raise your hands." Petitioner Love failed to read this page of instructions. Approximately two hours after the morning portion of the examination had begun, Petitioner Love raised his hand and informed a proctor that he was missing a page from his plans. Petitioner discovered the missing page when a person seated near him raised his hand to indicate he was missing a page from the plans. The missing page was promptly provided by the proctor; with the process of replacing the sheet taking approximately 5-10 minutes. When the Petitioner Love notified the proctors of the missing page, he was on question twelve of the exam. The Petitioner's scores were 75 percent on the first part, 90 percent on the second part and 45 percent on the third part which gave him an overall grade of 68.70 percent. A grade of 69.01 percent was required to achieve a passing grade. On the first part of the exam the Petitioner missed four questions prior to the challenged incident and only one following it. Petitioner Love has a hearing impairment directly related to his previous occupation as a firefighter. However, the Petitioner never informed the Respondent of his impairment prior to the exam so that special arrangements would be made to accommodate him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the Petitioner's request that his grade on part one of the June 4, 1981, general contractor's licensing examination be adjusted to reflect an overall passing grade. DONE and ORDERED this 9th day of September, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1982. COPIES FURNISHED: Peter D. Blanc, Esquire Post Office Box 1108 West Palm Beach, Florida 33402 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein Secretary Department of Professional Regulation Old Courthouse Square 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether the Respondent, Brian Pitts, treasurer for Justice-2-Jesus, a political committee, willfully violated Section 106.07(1), Florida Statutes, by failing to file a Campaign Treasurer's Report for the first quarter of 2008 (referred to herein as the 2008 Q1 CTR).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is the treasurer for Justice-2-Jesus, a political committee that registered with the Division of Elections (Division) on December 12, 2007. Justice-2-Jesus registered by filing an "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" form, or Form DS-DE-6. Justice-2-Jesus designated Respondent, Brian Pitts, as its treasurer. Respondent signed the document, giving as his address 1119 Newton Avenue South, St. Petersburg, Florida. Also on December 12, 2007, Justice-2-Jesus filed a "Registered Agent Statement of Appointment," Form DS-DE 41, naming Calvester Benjamin-Anderson as its registered agent. Respondent signed the document and gave 1119 Newton Avenue South, St. Petersburg, Florida as the address of the registered agent. The Division sent a letter, dated December 14, 2007, to Respondent acknowledging receipt of the Form DS-DE-6 and providing information about the Division's electronic filing system for CTRs. The letter informed Respondent that all political committees that file reports with the Division are required to do so by means of the electronic filing system. The Division's letter concluded with the following paragraph, set out in bold type: All of the Division's publications and reporting forms are available on the Division of Elections' web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapter 106, Florida Statutes, 2006 Committee and Campaign Treasurer Handbook, 2007-2008 Calendar of Reporting Dates, and Rule 1S- 2.017, Florida Administrative Code. The Division's letter also enclosed a sealed envelope containing PIN numbers to allow Respondent secure access to the Division's electronic filing system in order to submit CTRs for Justice-2-Jesus. A CTR lists all contributions received and expenditures made during a given reporting period. The 2008 Q1 CTR is the report that a campaign treasurer should have filed on behalf of his committee at the close of the first quarter of 2008. Respondent's 2008 Q1 CTR was due to be filed on or before April 10, 2008. Candidates and political committees have been required to file their CTRs electronically since 2004. § 106.0705(2), Fla. Stat. The CTR data may be uploaded using any of several proprietary programs that have been approved by the Division. These programs carry a fee for their use. As an alternative, the treasurer may enter the CTR information directly into the Division's electronic filing system at no cost. The Division has published an online "Electronic Filing System (EFS) User's Guide" (the Guide) to explain the use of the electronic filing system. The Guide contains help menus to assist the user in completing the data entry for a CTR. The Guide is available in a PDF format that can be read online or downloaded to the user's computer at no cost. A user may also make a public records request to the Division for a hard copy of the Guide. The Division will provide the hard copy at a cost of $0.20 per double-sided page, or approximately $4.80 for the 47-page Guide. On or about April 11, 2008, the Division sent Respondent a letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus, which had been due on April 10, 2008. On or about April 25, 2008, the Division sent Respondent a second letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus. Both letters were sent to 1119 Newton Avenue South, St. Petersburg, Florida, the address provided by Respondent on the Form DS-DE-6 for Justice-2-Jesus. Neither letter was returned to the Division as undeliverable or unclaimed. At the hearing, Respondent did not deny receiving these letters in April 2008. On or about July 10, 2008, the Division sent to Calvester Benjamin-Anderson, the registered agent for Justice-2- Jesus, a final notice that Respondent had failed to file the 2008 Q1 CTR for Justice-2-Jesus. The letter was sent certified mail, return receipt requested. Ms. Benjamin-Anderson signed for the letter on or about July 14, 2008. Respondent testified that he attempted to hand-deliver a paper copy of the 2008 Q1 CTR to the Division, but that a Division employee told him that he was required to file all reports for his committee electronically. The Division's records indicate that Respondent had filed Justice-2-Jesus' 2007 Q4 CTR and its 2007 SR2 report2/ electronically, prior to the due date for the 2008 Q1 CTR. Erin NeSmith, a supervisor in the Bureau of Election Records, testified that Respondent came into the Division's offices on November 20, 2008. Respondent asked Ms. NeSmith questions about the 2008 Q1 CTR. She told him that the matter had already been referred to the Commission because Respondent had not filed the report despite repeated notices, but that Respondent still needed to file the 2008 Q1 CTR. Respondent explained to Ms. NeSmith that he had not filed the report because he had been busy and had a lot of items to pull together for the report. As of August 10, 2009, Respondent had yet to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent testified that he had at least 50 contributions and 80 to 100 expenditures to report for the first quarter of 2008. Respondent testified that the due date for the 2008 Q1 CTR fell during the legislative session, when Respondent was extremely busy at the Florida Capitol. The Division's offices are open only during normal business hours, when Respondent was unavailable, and thus Respondent was unable to phone the Division for assistance in preparing the reports. Respondent defended his subsequent failure to file the report as something in the nature of a protest against the Division's electronic filing requirement and its alleged refusal to provide him with a paper copy of the Guide to facilitate his preparation of the report. Respondent complained that the vendors who provide Division-approved data uploading programs charge prohibitively expensive fees. He further complained that the alternative means of filing, direct entry of the data onto the Division's electronic filing system, is difficult and confusing without a paper copy of the Guide for assistance. Respondent acknowledged the availability of the Guide in printable PDF format, but asserted that purchasing printer cartridges and paper sufficient to print the Guide and other necessary Division handbooks would cost between $80.00 and $120.00. Respondent did not acknowledge the Division's willingness to print the Guide for $0.20 per double-sided page pursuant to a public records request. Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division. On behalf of Justice-2-Jesus, Respondent has electronically filed several reports to the Division subsequent to the due date for 2008 Q1 CTR. Willfulness is a question of fact. § 106.25(3), Fla. Stat. See Beardslee v. Fla. Elections Comm'n, 962 So. 2d 390, 393 (Fla. 5th DCA 2007); McGann v. Fla. Elections Comm'n, 803 So. 2d 763, 764 (Fla. 1st DCA 2001). Florida Administrative Code Rule 2B-1.002 provides: For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S, the following definitions shall apply: A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S. "Knew" means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision. "Reckless disregard" means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S. The evidence established that Respondent was well aware of the requirement to file the 2008 Q1 CTR on behalf of Justice-2-Jesus. Shortly after Respondent filed the committee's initial paperwork, the Division sent him an acknowledgement letter directing him to the Division's website for information about the electronic filing of campaign treasurer's reports. Respondent could have downloaded the Guide or any other Division publication. At the hearing, Respondent claimed no lack of knowledge of the filing requirements. After he failed to file the 2008 Q1 CTR, Respondent received two letters from the Division notifying him of the failure. Despite these notices, Respondent never filed the report. The evidence established that Respondent electronically filed two reports with the Division prior to the due date of the 2008 Q1 CTR, and filed several electronic reports after the due date of the 2008 Q1 CTR. These facts demonstrate Respondent's knowledge of the filing requirements and ability to prepare an electronic report. Respondent has acted willfully in his failure to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent asserted that Justice-2- Jesus was indigent, but offered no financial data to support the assertion.
The Issue Whether respondent's nonconforming sign was destroyed by an Act of God, and therefore its license should be revoked, or whether respondent's sign was merely damaged and the action taken by respondent constitutes reasonable repair and maintenance of the sign.
Findings Of Fact Harvey's Groves, Inc. is a citrus grower, shipper and retailer. Harvey's Groves has three retail stores in Brevard County. Ten billboards advertise these stores. Two signs advertise the store located at the intersection of I-95 and State Road 50. One of those signs is located one mile north of the intersection and advertises to traffic headed south. The other sign, which is the sign involved in this dispute, is located five miles south of the intersection. It is designed to advertise to northbound motorists, especially tourists on their return trip north. This sign has been in existence since the mid or late sixties. Respondent holds DOT sign permit number 7865-10 for the sign located five miles south of the intersection of I-95 and state road 50. The sign is a nonconforming sign as defined in Chapter 479, Florida Statutes. The sign is located in an area zoned agricultural, and thus would be prohibited except for its nonconforming status. On December 14, 1985, the sign was blown down by a windstorm. All six of the poles which supported the sign snapped a few feet above the ground and below the face of the sign resulting in the rest of the sign structure falling flat on its back. Other than the snapped poles, the sign was only slightly damaged. The two stringers on the top left hand corner of the sign and the top stringer on the right end of the sign had been broken but the remainder of the structure was basically intact. The sign face was still attached to the structure. The majority of the sign face had not been damaged. Mr. Harvey, the only person who saw the sign face prior to its repair, testified that two of the 4' x 8' panels had cracked but were still usable. However, the pictures of the old sign face, introduced-into evidence by respondent, showed that three 4' x 8' panels were missing from the sign face and apparently needed to be replaced. Further, two panels that were in the sign face at the time the pictures were taken contained no copy, and thus appeared to be replacement panels, but no evidence was presented to explain the blank panels. Prior to December 14, 1985, the sign consisted of a 14' x 40' rectangular sign face, with "cutouts" or embellishments which extended the height of the sign at certain points, attached to a sign structure consisting of six perpendicular poles and seven horizontal stringers. The sign face was attached to the stringers which ran the width of the sign. The stringers consisted of 2" x 4" boards which were nailed or spliced together to run the 40' width of the sign. A 2" x 4" board does not come in a 40' length. The poles extended approximately 18 feet above ground level; however, additional boards had been attached to the top of the poles so that the top of the sign extended above the top of the poles. The top two horizontal stringers supporting the sign face were located above the top of the pole that was measured as extending 18 feet above ground level. (R.Ex.#4) The HAGL, or height above ground level, of a sign is measured from the ground to the bottom of the sign face. Immediately prior to December 14, 1985, the HAGL of the sign was approximately 10 feet. However, the evidence was conflicting as to whether the HAGL had always been the same. Mr. King testified that the HAGL was measured in 1976, and at that time the HAGL was five feet. However, although Mr. King personally measured the sign, his testimony was not based on his personal knowledge of the measurement, but was instead based on his recollection of what the DOT records indicated the sign measured. The only record of DOT introduced into evidence, the Outdoor Advertising Inventory Update Listing, listed the HAGL at four feet. However, the computer printout listing alone is not sufficient to establish the HAGL of the sign because there was no competent evidence establishing the source, date, or reliability of the information. Further, other evidence is inconsistent with a 4-foot HAGL. Mr. Wright measured one of the broken poles and determined that the part of the pole still standing was four feet from the ground level to the break on top. However, petitioner's exhibit number 8, which shows the measured pole, notes the location of a 1964 permit tag affixed to the pole. The permit tag is not located on the 4-foot portion of the pole that is still standing; it is located on the portion of the pole that had broken off, and it is located well above the break. Thus, it is apparent that the HAGL could not have been four feet because that would put the permit tag behind the sign face. Petitioner argues that the HAGL had to be only four feet because the broken pole measured 18 feet above ground level and a 14-foot sign face on an 18-foot pole would leave only four feet between the bottom of the sign face and the ground. However, petitioner's argument is premised on the assumption that the top of the sign face was level with the top of the pole. There was no evidence presented to support this assumption. To the contrary, as found in the proceeding paragraph, the evidence clearly indicated that the top of the sign face was located above the top of the pole. Thus, in that there was no competent evidence to the contrary, the testimony of Mr. Harvey, that the HAGL has always been the same, is accepted, and it is found that the HAGL of the sign at all pertinent times prior to December 14, 1985, was approximately 10 feet. Prior to December 14, 1985, the sign was well maintained and in good condition. Every year in October or November the sign was checked to determine if any repairs were necessary. Every two or three years the sign was painted. On December 14 or 15, 1985, Mr. Harvey was advised that the sign was down. He went to the location and found the sign intact, flat on its back, and all six poles broken. Since the sign was down, Mr. Harvey had the sign face removed and taken to Harbor City Signs for painting. About three weeks after the incident, respondent installed six new poles that were 30' in length and extended about 24' above ground level. Respondent put all new stringers on the poles because it was easier and faster to put up new stringers than to remove the stringers from the old poles and put them on the new poles. Because the sign is responsible for a substantial amount of respondent's business, respondent's major concern was to get the sign back up as soon as possible. On January 21 and 22, 1986, Mr. King went to the location. He observed that the old sign structure was on the ground and that a new sign structure, with all new stringers and poles, had been erected. The new structure had nine stringers and the bottom stringer was approximately ten feet above the ground. The sign face had not been attached to the new structure. Mr. King placed a stop work order on the structure. When respondent was ready to attach the repainted sign face, apparently a short time after Mr. King's inspection, the stop work order was discovered. Thereafter, and apparently in an attempt to comply with what he perceived the DOT rules to be, Mr. Harvey had the new stringers removed from the new poles and had the stringers from the old structure affixed to the new poles. The new structure contained 10 horizontal stringers supporting the-sign face, one of which was new material. The cutout was also supported by a new horizontal stringer and a new perpendicular stringer. (P.Ex.10 and 12) The sign face was attached to this structure in March of 1986. The repainted sign face was essentially the same as it was prior to the accident, except that at the bottom, where it previously had stated "Indian River's Finest Citrus", the sign stated "Next Exit Florida's Best." The HAGL of the reerected sign was approximately the same as the old sign. Although Mr. King testified that the new HAGL was about 12 feet and Mr. Wright testified that the new HAGL was from 12-14 feet, their testimony was simply what they estimated the HAGL to be. Mr. Clayton, who actually affixed the stringers and repainted sign face, testified that the repainted sign face was placed at the same height above ground level as it had been before. Further, the photos taken of the sign in March and July (P.Ex.#5 and #10) do not support a finding that the new HAGL was 12-14 feet. Even if the measurement of 28 1/2 feet drawn on petitioner's exhibit number 10 were accurate, and there was no testimony revealing how this figure was derived, it is not useful in determining the HAGL since it purports to measure the distance from the top of the cutout to the ground. The 14' height of the sign does not include the height of the cutout, and there was no testimony to establish how many feet the cutout added to the height of the sign. Therefore, the testimony of Mr. Clayton is accepted as being the most competent evidence regarding the new HAGL. Thus, the HAGL on the sign after the sign face had been replaced was approximately 10 feet. After the sign face was attached in March, the sign looked about the same as it had prior to December. The sign's location in relationship to the road was the same and the HAGL was approximately the same. There was no increase in visibility. As Mr. King testified, there was no significant difference in the way the sign looked after its repair and the way it looked prior to December 14, 1985. There was no evidence presented concerning the actual cost expended by respondent to repair or rebuild the sign. There also was no evidence presented concerning the depreciated value of the sign prior to December 14, 1985. The only evidence presented as to cost was an estimate of the cost to replace the six poles. It was estimated that a new pole would cost about eighty or ninety dollars and that it would cost about thirty dollars per pole to have the poles placed in the ground.
Recommendation It is, therefore, RECOMMENDED that the Department of Transportation's violation notices seeking revocation of sign permit number 7865-10 be dismissed and that permit number 7865-10 remain in effect as a permit for the nonconforming sign located five miles south of the intersection of I-95 and State Road 50. Respectfully submitted and entered this 2nd day of March, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0967T Rulings on Petitioner's Proposed Findings of Fact: Accepted in paragraph 2. Rejected as stated in paragraphs 5 and 6 as not supported by competent, substantial evidence. Accepted, except evidence showed seven stringers, in paragraph 5. Accepted in paragraph 2. Accepted, except as to date, in paragraph 3. Accepted in paragraphs 8 and 9. Accepted generally in paragraphs 9 and 10. Accepted in paragraph 4. Rejected as not supported by competent, substantial evidence in paragraph 11. Rulings on Respondent's Proposed Findings of Fact and Conclusions of Law: 1-2. Accepted in paragraph 1. Accepted in paragraph 2. Rejected as irrelevant since only the depreciated value of the structural materials in the- sign is relevant. Rejected as irrelevant. Accepted generally in paragraphs 5 and 6. Accepted in paragraph 7. 8-9. Accepted generally in paragraphs 3 and 4, except as to number panels replaced and damage to stringers. Whether panels could have been reused is irrelevant. Rejected as irrelevant (see ruling on paragraph 4). Rejected as not supported by competent, substantial evidence and contrary finding in paragraph 8. Rejected as irrelevant. Accepted except as to date in paragraph 9 and in Background section. Accepted generally in paragraph 10. Rejected as irrelevant since only actual costs of new materials is irrelevant. Rejected as irrelevant. Accepted as stated in paragraph 10. Accepted in paragraph 12. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Victor M. Watson, Esquire 1970 Michigan Avenue Building C Cocoa, Florida Kaye Henderson, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
The Issue Whether the Department of General Services ("DGS") should grant the Department of Agriculture and Consumer Services' ("Agriculture") request to acquire a duplicating machine from Eastman Kodak Company ("Kodak") as a single source exception to competitive bidding requirements. Background On September 16, 1983, Agriculture certified to DGS the need to purchase a Kodak 250 AF duplicator as a single source commodity, without soliciting competitive bids. On September 26, 1983, DGS approved the request. The Kodak duplicator was subsequently acquired and has been used by Agriculture since October, 1983. By petition dated October 10, 1983, Xerox Corporation (Xerox) challenged the approval of the single source purchase by DGS and requested a Section 120.57(1), Florida Statutes, proceeding. On October 26, 1983, DGS forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Both Agriculture and Kodak intervened as parties. Hearing was set for February 27, 1984, but on motion by Xerox, was reset for March 5, 1984. At hearing, Xerox called as its witnesses: Salvatore Cavallaro, John Shipp, Pamela Shields, Kator Merritt, Dermot Nee and Gregory Williams. Xerox' Exhibit Nos. 1 through 6, 7-A, 7-H, 7-C, 8, 9, and 11 through 16 were received in evidence. DGS and Kodak presented no testimony, but DGS' Exhibit Nos. 1 and 2, and Kodak Exhibit Nos. 1 and 2 were received in evidence. Agriculture called no witnesses and offered no exhibits. By agreement, the depositions of Steve Wharton, David Jackson, Charles Stryker III, J. Malcolm Haney, and David Grant were received in evidence, in lieu of live testimony. The transcript of hearing was filed on March 28, 1984. The parties filed proposed findings of fact and conclusions of law by April 11, 1984. Those proposed findings incorporated in this Recommended Order are adopted; otherwise, they are specifically rejected as unsupported by the evidence or as irrelevant or unnecessary to resolution of the issue presented. Based on the evidence presented, the following facts are determined: FINDINGS OF FACT I. Agriculture's Request On September 16, 1983, Agriculture requested the approval of DGS to purchase an Eastman Kodak 250 AF Duplicator as a single source commodity. This request was made in writing pursuant to Rule 13A-1.10, Florida Administrative Code, and contained several reasons for the purchase. Prior to making its request to purchase a Kodak 250 AF, Agriculture had considered other duplicating machines, including the Xerox model 9500. At the time it considered these other machines, Agriculture's print shop manager believed that the Kodak 250 AF was not available on the local market. In an effort to learn more about available products and materials, Kator Merritt, Agriculture's print shop manager, had telephoned DGS employee Darby Nee. During that telephone conversation, Mr. Merritt told Mr. Nee that the print shop was experiencing a backlog of work waiting to be stapled. Mr. Nee suggested that Agriculture take a look at the Kodak 250 AF, which contains on-line stapling capability. Mr. Merritt responded that he did not know it was locally available. II. DGS' Response In his telephone conversation with Mr. Merritt, DGS' Darby Nee did not deny or approve any request for a duplicating machine. Be viewed Mr. Merritt's call as a request for information. Mr. Merritt did not feel pressured by DGS to purchase the Kodak 250 AF nor discouraged from purchasing the Xerox 9500, which was also discussed. DGS responded to Agriculture's request by letter dated September 26, 1983, approving the purchase of a Kodak 250 AF. It is this approval which is at issue here. Prior to DGS' approval of Agriculture's request, DGS employee Darby Nee conducted an on-site survey which verified Agriculture's need for the Kodak 250 AF. During this survey Mr. Nee made a visual inspection of Agriculture's print shop operation, reviewed production records and talked to print shop employees. He concluded that on-line finishing (stapling) was necessary to eliminate the bottleneck in the print shop operations, and that the Kodak 250 AF was the only duplicator available which could provide on-line finishing and meet Agriculture's volume demands of 400-500,000 copies per month. Based on an examination of Agriculture's job tickets for the period of April 1, 1983 through September 30, 1983, Mr. Nee also determined that 59.7 percent of all duplicating work collated and stapled off-line by the (existing) Xerox 920 could have been finished totally on-line with the Kodak 250 AF. III. Agriculture's Needs Agriculture's needs, insofar as they relate to the duplicating aspect of its print shop operation, are to get the work out on time and avoid labor intensive operations. Agriculture's need to be efficient in its print shop operations is part of a larger strategy to lessen manpower needs. Agriculture's print shop is part of the Bureau of General Services, which has a critical personnel shortage. In each of the last several years, Agriculture has experienced a decrease in the number of positions authorized by the Legislature. At the direction of its agency head, Agriculture has tried to implement a policy of increased productivity by automating, whenever possible, and reducing hands-on labor requirements. Agriculture's response to decreasing manpower affects the print shop operation. Because the print shop has experienced cutbacks and does not expect the addition of any more positions, it has sought more automated equipment. And because other parts of the agency have also experienced a manpower shortage, print shop personnel must perform tasks unrelated to the print shop. The operator of the duplicator, as well as other print shop personnel, must be as free as possible from having to perform finishing tasks, such as stapling, which would prevent them from performing work outside the print shop. IV. Xerox Model 9200 The Xerox model 9200 duplicator, replaced by the Kodak 250 AF, failed to satisfy Agriculture's needs. Work was not done on time because bottlenecks developed. These bottlenecks were primarily caused by having to staple copies off-line with the Xerox 920 jogger-stitcher and lack of duplexing capabilities. Of the two shortcomings, the lack of on-line stapling was the most serious. Because of the manpower shortages, once jobs were printed they were stacked on counters until stapled. This led to delays in getting jobs out. V. Xerox Model 1075 Xerox contends that the Xerox 1075, which has on-line stapling and duplexing capability, can satisfy Agriculture's needs. But the Xerox 1075 would not satisfy Agriculture's needs. Different printing jobs at Agriculture require copies to be stapled in different positions. Some jobs are stapled in the top left-hand corner, some are stapled two to the side (book style), some are stapled at both top corners of the, page and some require stapling at other positions. The Kodak 250 AF can staple in six different positions but the 1075 can staple in only one position. The Xerox 1075 would also not meet Agriculture's volume requirements, which average 425,000 copies a month. Xerox, itself, recommends a maximum monthly volume for the 1075 which falls far short of Agriculture's needs. Initially, Xerox did not recommend the 1075 as a replacement for the 9200; neither does it recommend it now. VI. The Kodak 250 AF and Xerox Model 9500 Since October, 1983, the Kodak 250 AF has satisfied Agriculture's needs by performing duplicating jobs on time and by freeing-up the operator and other print shop employees from labor intensive operations. The operator does other things while the 250 is running. The job is a stapled, finished product when it comes out of the machine. Agriculture's duplicating needs could not now be satisfied by the Xerox model 9500, or any other duplicator except the Kodak 250 AF, because only the Kodak 250 AF performs on-line stapling, produces a finished product, and meets the agency's high volume requirements. Without operator intervention, the Kodak 250 AF is able to produce a stapled, finished product because of its on-line finishing capability. This feature is important because the majority of duplicating jobs at Agriculture require stapling. The Xerox 9500 does not, however, have on-line finishing capability. The stapling is performed off-line by hand; this is labor intensive work even when the Xerox 920 jogger-stitcher is used. The jogger-stitcher can jog and stitch only one set (copy) at a time. The Kodak 250 AF also has a high monthly volume capacity which enables it to satisfy Agriculture's volume requirements. The Xerox model 9500 cannot satisfy Agriculture's need to avoid labor intensive operations and free-up print shop personnel for other tasks because it cannot do on-line finishing and produce a finished product. Unlike the Kodak 250 AF, which stacks, in offset fashion, stapled copies, the Xerox 9500 places unstapled copies into separate sorting bins. The 9500 can be equipped with only 50 bins, which must be unloaded by hand. If the bins are filled, the Xerox 9500 will stop and will not restart until 25 bins have been unloaded. Consequently, unlike the Kodak 250 AF, the Xerox 9500 requires constant operator attendance. In comparing the productivity of the Xerox 9500 and Kodak 250 AF, Xerox and Kodak concluded that their particular machines could perform Agriculture's work load in less time than the other's. Both seemingly agree, however, that the Xerox 9500 would take about 76 hours to complete a month's work at Agriculture. If the Xerox 9500 operator was unable to overlap copying jobs and allowed the machine to stop between jobs, an additional 7.5 hours must be added. If the operator was unable to attend the machine at all times, thus allowing the machine to stop in the midst of a job, an unknown amount of additional time must be added. The evidence is conflicting on the amount of time required for the Kodak 250 AF to complete a like amount of work. Xerox estimates that it would take the 250 AF 88.36 hours to complete the month's job assignments, while Kodak estimates 66.28. The difference results from each party using different time factors or productivity standards. These are standards which are derived by precisely measuring the time required for the machine and its operator to complete specified tasks. The conflicting estimates are resolved in favor of Kodak, which used productivity standards derived from timing and re-timing machine and operator in a con- trolled setting. In contrast, the Xerox productivity standards for the Kodak 250 AF were, in large part, derived from a single timing session taken a week before hearing on a visit to a Kodak 250 AF in use at a federal building in Washington, D.C. The Kodak 250 AF was in a walk-up convenience printing center, not a print shop setting where an operator is trained for and operates the machine. Productivity standards derived from a walk-up convenience center are not valid for a print shop setting. Because of manpower shortages at Agriculture, the time required for an operator (as opposed to a duplicating machine) to complete the month's work is pertinent. The Kodak 250 AF would require less than three hours while the Xerox 9500 would require 13.57 hours. "Absolute operator time" is the minimal time an operator must be in attendance at the machine. Assuming Agriculture's monthly work load, the Kodak 250 AF would require less than three hours of "absolute operator time." The Xerox 9500 would require 21.76 hours. During these hours, the operator would be unable to perform off-line functions, such as cutting or folding. The Kodak 250 AF, in use at Agriculture since October, 1983, has proven itself in actual service. It has enabled Agriculture to increase productivity, eliminate bottlenecks, and decrease manpower needs in its print shop.
Recommendation Based on the foregoing, it is RECOMMENDED: That DGS authorize Agriculture to purchase the Kodak 250 AF duplicator as a single source commodity. DONE and ENTERED this 17th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of July, 1984. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel and Hoffman, P.A. Suite 646 Lewis State Bank Building Tallahassee, Florida 32301 Charles M. Bredehoft, Esquire Counsel, Mid-Atlantic Region Office of General Counsel Xerox Corporation 1616 North Fort Myers Drive Arlington, Virginia 22209 William P. Beck, Esquire Assistant General Counsel Department of General Services 452 Larson Building Tallahassee, Florida 32301 Robert A. Chastain, Esquire General Counsel Department of Agriculture, and Consumer Services 513 Mayo Building Tallahassee, Florida 32301 Martha Harrell Hall, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. 410 Lewis State Bank Building Tallahassee, Florida 32301 Ronald W. Thomas, Executive Director Department of General Services Room 115 Larson Building Tallahassee, Florida 32301
Findings Of Fact 10. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on January 9, 2009, the Amended Order of Penalty Assessment issued on February 18, 2009, and the 2nd Amended Order of Penalty Assessment issued on September 4, 2009, which are attached as “Exhibit A,” “Exhibit B,” and “Exhibit C,” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case,
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-008-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On January 9, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-008-D1 to A. J. ELECTRIC INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein A. J. ELECTRIC INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 2. On January 14, 2009, the Stop-Work Order and Order of Penalty Assessment was served by certified mail on A. J. ELECTRIC INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 18, 2009, the Department issued an Amended Order of Penalty Assessment assessed a total penalty of $10,273.51 against A. J. ELECTRIC INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein A. J. ELECTRIC INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4, On April 2, 2009, the Amended Order of Penalty Assessment was served by process server on A. J. ELECTRIC INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On September 4, 2009, the Department issued a 2nd Amended Order of Penalty Assessment to A. J. ELECTRIC INC. in Case No. 09-008-D1. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $5,988.97 against A. J. ELECTRIC INC. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein A. J. ELECTRIC INC. was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 6. On September 9, 2009, the 2nd Amended Order of Penalty Assessment was served by certified mail on A. J. ELECTRIC INC. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On September 29, 2009, A. J. ELECTRIC INC. filed a petition requesting an Administrative Hearings on October 15, 2009, and the matter was assigned DOAH Case No. 09- 5631. 8. On January 14, 2010, an Unopposed Motion for Continuance and to Place Case in Abeyance was filed with the Division of Administrative Hearings. Subsequently, the Administrative Law Judge entered an Order Granting Continuance and Placing Case in Abeyance on January 26, 2010, which required a written response regarding the status of the matter be filed with the Division of Administrative Hearings no later than March 15, 2010. 9. On June 9, 2010, after receiving no response to the Order Granting Continuance and Placing Case in Abeyance, the Administrative Law Judge entered an Order Closing File which relinquished jurisdiction of the matter to the Department for final disposition. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue The issue is whether Respondent should be dismissed from her employment with Petitioner for the reasons set forth in a termination letter dated October 3, 2008.
Findings Of Fact Respondent Novella Franklin began her employment with FAMU in 1987. From 1993 to December 1996, and again from November 1999 through 2008, Ms. Franklin worked in the Registrar’s Office. At all times material to this proceeding, Respondent held the position of Office Manager in the Registrar’s Office. On or about June 2, 2008, Ms. Janet Johnson accepted the position of Registrar at FAMU. Ms. Johnson’s first day of employment was July 7, 2008. Prior to that date, the position of Registrar had been vacant for some time. Ms. Johnson had previously worked for FAMU at a time not material to this proceeding. Ms. Johnson and Respondent knew each other from the time of Ms. Johnson’s previous employment there. In mid-June 2008, Respondent asked Roland Gaines, Vice President for Student Affairs, for Ms. Johnson’s telephone number so that she could contact Ms. Johnson regarding several matters related to her transition to employment at FAMU. Mr. Gaines’ assistant provided Ms. Johnson’s telephone number to Respondent. In mid-to-late June 2008, Respondent phoned Ms. Johnson to welcome her back to FAMU and to assist Ms. Johnson with her transition back to FAMU. During telephone conversations, Respondent asked Ms. Johnson if she needed Respondent’s assistance with securing employment related items such as a parking decal, name plate, business cards, and access into the building where the Registrar’s Office is located. Respondent also asked Ms. Johnson if she wanted Respondent to order signature stamps for the office. At all times relevant to this proceeding, Denise Jones was the Administrative Assistant for the Office of the Registrar. On June 26, 2008, Ms. Johnson sent an e-mail addressed to Respondent and Ms. Jones which stated as follows: Good morning ladies, Novella, thanks for contacting me and gathering pertinent information to assist with my arrival to FAMU. Attached are several copies of my signature, select one (a good looking clear one) and use for the documents & stamps needed in the office. Select from one of the Janet E. Johnson signatures. Please protect these signatures. In the past they should be destroyed once used. I look forward to seeing you all on the 7th. Janet E. Johnson Attached to the e-mail were several versions of Ms. Johnson’s signature, as referenced in the e-mail. After receiving Ms. Johnson’s e-mail, Respondent spoke to Ms. Jones, who provided Respondent with the name and phone number of the Tallahassee Stamp Company. Ms. Jones is the person who typically orders supplies for the Registrar’s Office through a requisitioning process. Respondent learned from Ms. Jones that the budget had not yet been approved to purchase office supplies. In late June or the beginning of July, Respondent called Tallahassee Stamp Company and spoke to an employee there. On July 2, 2008, Respondent sent an e-mail to Tallahassee Stamp Company wherein she placed an order for a signature stamp containing Ms. Johnson’s signature. The e-mail contained the same attachment that Ms. Johnson provided in her e-mail to Respondent and Ms. Jones. Respondent’s e-mail to the stamp company stated, “Good morning. See attached signature for a stamp. The third from the top.” At the time she placed the order for the stamp, Respondent did not inform anyone at FAMU that she had placed the order. On July 21, 2008, Ms. Jones prepared a requisition for five signature stamps containing Ms. Johnson’s name. On July 24, 2008, Ms. Johnson approved the requisition for the five signature stamps. In addition to her position as Office Manager at the Registrar’s Office, Respondent was the Head Coach of the FAMU women’s bowling team. On July 25, 2008, Respondent left to attend a funeral in Chicago for a student athlete who had been killed in a car accident. Respondent returned to work mid-day on July 29, 2008. On July 30, 2008, Respondent reported to work in the morning and then left for a doctor’s appointment. On the way back to work, she stopped by Tallahassee Stamp Company. She picked up one stamp with Ms. Johnson’s signature and paid for it with her personal funds. She then stopped for lunch and thereafter returned to work around 12:30 p.m. Upon returning to work, Ms. Sharla Givens, a Transcript Specialist in the Registrar’s office, walked by Respondent’s desk. Respondent then showed Ms. Givens the signature stamp she had just picked up from the stamp company and informed Ms. Givens that she had purchased it with her own funds. Ms. Givens describes her reaction to Respondent having the stamp as “shocked.” Respondent then went to the desk of Rosa Christie, the receptionist for the Registrar’s Office, and showed Ms. Christie the stamp. Ms. Christie’s desk is just outside Ms. Johnson’s office. Respondent informed Ms. Christie that she had purchased the stamp for Ms. Johnson and that Ms. Johnson should not have to wait until funds were available to receive a signature stamp. Ms. Christie told Respondent that that was “nice.” Respondent also told Ms. Jones and another staff member, Ms. Thomas, about having the signature stamp. That afternoon, at approximately 4:45 p.m., Respondent was called into Ms. Johnson’s office and received a written reprimand for a matter unrelated to the allegations which form the basis for this proceeding. This meeting took 20 to 25 minutes. Respondent did not inform Ms. Johnson that she had the signature stamp during this meeting or at any other time. Respondent was upset at having received a written reprimand. She prepared a written response which was ultimately submitted to the Assistant Registrar on August 5, 2008. Danielle Kennedy-Lamar is the Associate Vice President for Student Affairs and is in charge of enrollment management. Prior to the time that Ms. Johnson was hired as Registrar and for a short time thereafter, student transcripts were stamped by Ms. Kennedy-Lamar’s administrative assistant, Allison McNealy. Ms. McNealy learned from Ms. Givens that Respondent had a signature stamp. Ms. McNealy reported this to Ms. Kennedy-Lamar and inquired whether she, Ms. McNealy, would continue to stamp transcripts. On August 1, 2008, Ms. Kennedy-Lamar had a previously scheduled meeting with Ms. Johnson. During this meeting, Ms. Kennedy-Lamar asked Ms. Johnson if Ms. Johnson was aware that Respondent had a stamp bearing Ms. Johnson’s signature. Ms. Johnson informed Ms. Kennedy-Lamar that she was not aware that Respondent had a signature stamp. Ms. Kennedy-Lamar then instructed Ms. McNealy to ask Ms. Givens if she had any transcripts and, if so, to have Respondent stamp them. Ms. Kennedy-Lamar did this to determine whether such a stamp existed. Ms. Givens then delivered several transcripts to Respondent, asked Respondent to stamp the transcripts, and advised Respondent that Respondent had the authority to stamp the transcripts. Respondent did not immediately stamp the transcripts, but eventually stamped them as instructed. At the time she stamped the transcripts, Respondent did so with authorization form Ms. Kennedy-Lamar’s office. The transcripts then were returned to Ms. Kennedy- Lamar, who recalls that there were approximately 20 transcripts. Ms. Kennedy-Lamar then gave the stamped transcripts to Ms. Johnson. The stamped transcripts were not disseminated to the students or whoever requested them. Ms. Johnson thereafter instructed Ms. Jones to cancel the stamp order that she had previously authorized and prepared another signature to order a different signature stamp. At the time Respondent was instructed to stamp transcripts, the standard procedure was as follows: Ms. Givens or Ms. Thomas from the Registrar’s Office, or on some occasions Respondent, would bring printed transcripts to Ms. McNealy in Ms. Kennedy-Lamar’s office. Ms. McNealy would stamp the transcripts. Ms. McNealy would then notify Registrar staff that the transcripts were ready for pickup. Ms. Givens, Ms. Thomas, or on some occasions Respondent, would retrieve the stamped transcripts. Ms. McNealy did not conduct a review of the transcripts before stamping or ask Ms. Kennedy-Lamar to review them prior to stamping them. Roland Gaines is Vice-President for Student Affairs at FAMU. On May 8, 2008, Dr. James Ammons, President of FAMU, delegated to Mr. Gaines the authority to administer all applicable FAMU regulations, policies, and procedures affecting employment and personnel actions consistent with Chapter 10 of FAMU regulations. On September 18, 2008, Mr. Gaines wrote a letter to Respondent notifying her of the University’s intent to dismiss her from employment and placing her on leave with pay. The letter cites FAMU Regulations 1.019(4), 10.111(1), 10.111(2)(b), 10.302(3)(y), and 10.302(3)(cc) as authority, and states in pertinent part as follows: This employment action is being considered against you for the following alleged work violations: * * * This proposed employment action is being considered against [sic] for your alleged failure to follow the protocols established by the University Registrar’s Office for processing student transcript requests. In addition, you allegedly requested, via e- mail, the production of a facsimile stamp bearing the signature of the Registrar; used your personal funds to purchase the stamp; and embossed 43 transcripts totaling 140 documents which were released without appropriate review and approval by the designated University authority. The enclosed documents from the Division of Audit and Compliance provide further details of the subject allegations of misconduct. The September 18, 2008, letter also provides Respondent with an opportunity to request a predetermination conference to present an oral or written statement, or both, to refute or explain the charges against her. Respondent submitted a written response and a predetermination conference was held on September 29, 2008. On October 3, 2008, Mr. Gaines notified Respondent by letter that she was dismissed from employment effective at the close of business October 16, 2008. The letter again cited the same FAMU regulations which were cited in the September 18, 2008, letter and added no additional or different factual bases for Respondent’s termination. The October 3, 2008, letter also advised Respondent of her right to appeal this action. FAMU referred Respondent’s appeal of her termination to the Division of Administrative Hearings, and this de novo proceeding ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rescinding its October 3, 2008, letter terminating Respondent from employment, thereby entitling Respondent to reinstatement to a comparable position, and appropriate back pay from the effective date of her termination until the date of reinstatement. DONE AND ENTERED this 23rd day of June, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of June, 2009.
