The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the scheduled final hearing.
Findings Of Fact Upon receipt of the Petition for Relief at DOAH, an Initial Order was issued on October 8, 2010, requiring Petitioner to coordinate a joint response to provide certain information within seven days or to file a unilateral response, if a joint response was not possible. Petitioner did not respond to the Initial Order. On October 15, 2010, Respondent submitted a unilateral response indicating that Petitioner had not contacted Respondent to coordinate a response. The undersigned issued a Notice of Hearing on November 5, 2010, scheduling the final hearing for December 8, 2010, at the Martin Luther King, Jr., Administrative Center in Naples, Florida. The notice included citations to the procedural statutes and rules governing the hearing and information about the parties' obligation to appear at the hearing with their witnesses and evidence. With the Notice of Hearing, the undersigned issued an Order of Pre-hearing Instructions, which required the parties to exchange witness lists and copies of their proposed exhibits at least seven days before the final hearing and to file their witness lists with DOAH. The Order warned that failure to comply with these requirements "may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed." The foregoing Orders and notice were mailed to Petitioner at his address of record in New York, New York, and none of these envelopes was returned as undeliverable. Petitioner resides in New York, but as specified in the FCHR Determination of No Cause, Petitioner is a frequent visitor to Naples, Florida, where his mother lives in a condominium she owns at Park Shore Landings. Indeed, it was Petitioner's rental of a unit at Park Shore Landings, on multiple occasions spanning multiple weeks that gave rise to Petitioner's complaint filed with FCHR. On November 23, 2010, Respondent filed a Motion for Continuance because of difficulties coordinating Petitioner's deposition to accommodate Petitioner's holiday travel plans and scheduling conflicts. A continuance was granted for good cause shown, and the final hearing was rescheduled for February 15, 2011, at 9:00 a.m., in Naples, at a location to be determined at a later date. The Order stated that the previous Order of Pre-hearing Instructions remained in full force and effect. An Amended Notice of Hearing was issued on December 9, 2010, to specify the hearing location: Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples, Florida. This notice repeated the hearing date (February 15, 2011) and time (9:00 a.m.). The notice also reiterated that the parties were required to appear at the time and place of the hearing with their witnesses and evidence and that failure to appear may result in dismissal. The notice listed the name, address, and telephone number for the hearing room contact person at the hearing site. The notice was mailed to Petitioner at his address of record and was not returned undeliverable. On December 15, 2010, Respondent filed a notice of taking Petitioner's deposition in Naples on December 22, 2010, at a court reporter's office near the scheduled location for the final hearing. On February 2, 2011, the undersigned issued another Amended Notice of Hearing to advise that any party desiring a court reporter had to make arrangements at the party's own expense, with notice to the other party and to the undersigned. This notice repeated the final hearing date (February 15, 2011), time (9:00 a.m.), and location (Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples). The notice also repeated the name, address, and telephone number for the hearing room confirmation contact person. Like all previous notices of hearing, the notice reiterated that parties were required to appear at the time and place of the hearing with their witnesses and evidence and that "[f]ailure to appear at this hearing may be grounds for entry of an order of dismissal." On February 8, 2011, in accordance with the Order of Pre-Hearing Instructions, Respondent filed its witness list, with names and addresses for five witnesses and a certification that Respondent's exhibits had been provided to Petitioner. No witness list was filed by Petitioner. On February 10, 2011, Respondent gave notice to the undersigned and to Petitioner that Respondent had retained a court reporter to record the February 15, 2011, final hearing. The undersigned traveled from Tallahassee to Naples on Monday, February 14, 2011, and stayed overnight at a hotel in Naples, in order to convene the hearing scheduled for 9:00 a.m., the next morning. On February 15, 2011, the undersigned arrived at the noticed hearing location at approximately 8:30 a.m. Counsel for Respondent (from Tampa) and four of Respondent's witnesses were already present. Arriving at the same time as the undersigned was Respondent's fifth witness and the court reporter. At 9:00 a.m., the undersigned went on the record to convene the scheduled hearing to allow counsel for Respondent to enter his appearance for the record and to announce that Petitioner had not appeared or contacted anyone to explain his absence. The undersigned then recessed the hearing for 20 minutes in case Petitioner was running late. At 9:12 a.m. (as time-recorded by the undersigned's mobile phone), the undersigned called her assistant at DOAH to determine whether Petitioner had called DOAH or submitted anything in writing that would explain his failure to appear for the scheduled hearing. The undersigned's assistant stated that no calls or filings had been received and that she would call the undersigned on her mobile phone immediately, if Petitioner contacted her. Meanwhile, to make sure that Petitioner was not on the premises unable to find the hearing room, one of Respondent's representatives checked at the front desk, where anyone entering the building would have to check in and go through the security procedures, and verified that Petitioner had not arrived. Shortly after 9:20 a.m., the undersigned went back on the record to state that Petitioner had still not appeared, nor had Petitioner contacted DOAH or someone at the hearing site. The undersigned recited the steps taken to verify the absence of contact by Petitioner; reviewed the file, noting the multiple notices and Orders mailed to Petitioner; and confirmed Petitioner's address of record to which the notices and Orders were mailed and not returned as undeliverable. Respondent represented that Petitioner did not show up for the first deposition scheduled in coordination with Petitioner's calendar, but that Petitioner did appear the second time his deposition was set. Respondent also represented that Petitioner did not provide Respondent with a witness list or copies of any proposed exhibits. Respondent had no other information about Petitioner's whereabouts or intentions. Based on Petitioner's failure to appear and present a prima facie case to meet his burden of proof, the convened hearing was adjourned shortly before 9:30 a.m. Those present took some time to pack up computers and files and move furniture to restore the room to its prior configuration. Thus, it was after 9:30 a.m., when the undersigned exited the building, after checking again at the front desk to verify there was still no sign of, or word from, Petitioner. The undersigned drove to a hotel located eight minutes from the hearing site. Upon arrival, the undersigned's mobile phone rang, but could not be answered before the call went to voice mail. A voice mail message was left by the undersigned's assistant, time-recorded at 9:51 a.m. The message was that the undersigned's assistant had just spoken with Mr. Ziolkowski, who had called to say that he was at the hearing site, but no one was there. Petitioner told the assistant that he had been at the emergency room until an hour earlier (i.e., until 8:45 a.m.), and he went straight to the hearing site. The undersigned's assistant asked Petitioner why he had not called sooner, and his only response was that he did not have his mobile phone; but when asked how he was calling her then, he said he was calling from his mobile phone, and he gave the assistant his mobile phone number, which had not been provided previously. Petitioner then asked the undersigned's assistant about rescheduling the hearing. She explained that she had no authority to address his request; if Petitioner wanted the undersigned to consider a request for relief, it had to be submitted in writing and should provide any explanation and documentation he had as to why he could not be at the hearing and why he could not call. A memorandum from Mr. Ziolkowski was filed at DOAH by fax on February 16, 2011, at 2:40 p.m. The one-page memorandum, with no attachments and no certificate of service indicating service on Respondent, stated in pertinent part: Please accept my apologies for not being able to communicate with you yesterday regarding my delayed appearance to your courtroom. I was in the emergency room at Naples Community Hospital until 8:11 am Tuesday (2/15/11). I went straight from the hospital to the Administrative center and I didn't have my mobile phone or directions to the Administrative center and finally I reached the Administrative center at approximately 9:30 a.m. Petitioner ended the memorandum with a request to reschedule the final hearing. Copied onto the bottom of the page was a small label, perhaps a hospital-issued identification bracelet bearing Petitioner's name and date of birth, a reference number and several other numbers, "NCH 02/15/11," and a bar code. The undersigned issued a Notice of Ex-Parte Communication with the memorandum attached, which was mailed to both parties. On February 28, 2011, Respondent filed its Objection to Petitioner's Request for Re-Hearing. Respondent's objection asserted that the documentation offered by Petitioner was insufficient to prove that Petitioner was at Naples Community Hospital until 8:11 a.m. on February 15, 2011, because the identification label only showed a date, February 15, 2011, which could be as early as 12:01 a.m., or as late as many hours after the scheduled hearing. Petitioner chose not to provide the documentation that he apparently had to show the precise time that he left the emergency room--8:11 a.m. (more than 30 minutes earlier than he told the undersigned's assistant on the telephone). Such documentation would also likely reveal such information as the time of day or night when Petitioner was clocked in at the emergency room; why Petitioner presented at the emergency room; what, if anything, was wrong with Petitioner; and whether he received any treatment or whether treatment was deemed unnecessary. Respondent's objection went on to note that even assuming the accuracy of Petitioner's stated departure time of 8:11 a.m., from Naples Community Hospital, that hospital has only two campuses, "one of which is six minutes and the other is fifteen minutes away from the location of the hearing." Respondent's objection concluded, "At bottom, Petitioner was not in the emergency room at the time of the hearing, had ample time to attend the hearing, and has provided no evidence to support his request to re-schedule the duly-noticed February 15, 2011 hearing."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, John Ziolkowski's, Petition for Relief. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue Whether the proposal Petitioner submitted in response to Respondent's Request for Proposal No. 00-DC-7295 was non- responsive.
Findings Of Fact Stipulated Facts On or about August 14, 2000, the Department issued RFP No. 00-DC-7295 for an Inmate Telephone System. Generally, RFP No. 00-DC-7295 requests proposers to submit proposals to provide local, intralata, interlata, and international telephone services for inmates in the Department's facilities identified in the RFP and coin- operated telephones at each site for staff and visitors. The proposer awarded the contract under RFP No. 00-DC-7295 (the Contractor) must provide and install all telephone instruments and all wiring. The Contractor must also provide system administrators and site technicians who will implement and manage pin numbers and calling lists for inmates, and must provide various specified reports and data to the Department All services, equipment, etc., addressed in RFP No. 00-DC-7295 must be provided to the Department at no cost. Instead, the Contractor must pay the Department a commission calculated as a percentage of gross revenues. Consequently, the contract to be awarded under RFP No. 00-DC-7295 is a revenue-generating contract for the Department. Sprint, T-NETIX, WorldCom at AT&T timely submitted proposals to the RFP. On November 6, 2000, the assigned Department Purchasing Staff member, Genanne Wilson, determined the AT&T and Sprint proposals to be non-responsive for failing1 to meet the mandatory requirements of the RFP. Sprint's proposal was also determined to contain a material deviation2 from the RFP. The determination that the Sprint proposal failed3 to meet the mandatory requirements of the RFP and contained a material deviation was based on Sprint's inclusion of the following underlined language on the Supplemental Proposal Sheets wherein the proposers were instructed to appropriately initial in understanding and agreement each paragraph of the RFP: Liquidated Damages With the express understanding the total liquidated damages are limited to $100,000.00 by the Limitation of Remedies in Section 7.32. Following the determination that the Sprint proposal failed4 to meet the mandatory requirements of the RFP and contained a material deviation, Sprint's proposal was not further evaluated by the Department. The T-NETIX5 and WorldCom proposals were individually evaluated by each member of an Evaluation Team pursuant to the criteria specified in the RFP. On Tuesday, December 5, 2000, the Department posted its intended award of the contract for RFP No. 00-DC-7295 to WorldCom. Sprint and T-NETIX each timely filed a protest to this intended award. Findings of Fact Based on the Evidence of the Record On or about October 13, 2000, the Department issued Addendum No. 1 to RFP No. 00-DC-7295 which reprinted the original RFP in its entirety and included 67 revisions. Section 4.3.6 of the RFP specifies that, "[t]he Department shall reject any and all proposals not meeting mandatory responsiveness requirements." Section 5.1 of the RFP, reads in pertinent part as follows: Tab 1 - Mandatory Responsiveness Requirements The following terms, conditions, or requirements must be met by the proposer to be responsive to this RFP. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet responsiveness requirements will not be evaluated. It is mandatory that the proposer supply one (1) original and ten (10) copies of both the Project and the Cost Proposals. Project and Cost Proposals shall be in separately sealed packages each clearly marked "Project Proposal - RFP-00-DC-7295" or "Cost Proposal - RFP-00-DC-7295" respectively. Inclusion of any commission rates or pricing data in the Project Proposal shall result in rejection of the entire proposal. It is mandatory the proposer return, under Tab 1, the Supplemental Proposal Sheets (Attachment 1) of this RFP document, appropriately initialed in understanding and agreement of each paragraph of the RFP and signed by the person with authority to properly bind the proposer. It is mandatory the proposer complete, sign and return, under Tab 1, the PUR Form 7033, State of Florida Request for Proposal/Contractual Services Acknowledgment which is the front cover of this RFP document. A copy of the document that includes both front and back sides is acceptable. (emphasis in original) Section 6.1 of the RFP further provides: 6.1 Review of Mandatory Responsiveness Requirements Proposals will be reviewed by Department staff to determine if they comply with the mandatory requirements listed in Section 5 of the RFP. This will be a yes/no review to determine if all requirements have been met. Failure to meet any of these mandatory requirements will render proposal non-responsive and result in rejection of the proposal. Further evaluation will not be performed. No points will be awarded for passing the mandatory requirements. (emphasis in original) RFP Section 7.30, entitled, "Liquidated Damages," addresses liquidated damages for various requirements and services to be provided by the successful proposer under the contract for an inmate telephone system. Section 7.30 does not contain a cap or limitation on liquidated damages. RFP Section 7.32, entitled "Limitation of Remedies," addresses the limitation of remedies for the performance or non-performance of machines and programming. There is no cap or limitation on liquidated damages established by RFP Section 7.32. Sprint altered the Supplemental Proposal Sheets by limiting liquidated damages under Section 7.30 to $100,000 based upon its understanding of the relationship between Sections 7.30 and 7.32 of the RFP. Specifically, Sprint read Sections 7.30 and 7.32 in para materia and concluded that total liquidated damages would be "limited to $100,000 by the limitation of remedies in Section 7.32." Mike Jewell, who at the time the RFP was issued, was Sprint's Vice President of Sprint Payphone Services, Inc., was responsible for "oversight over the responses that Sprint submitted and to make sure that they were in keeping with the corporation's business interests." Mr. Jewell testified that the purpose of inserting this language in the proposal was to, "point out to the Department of Corrections that our agreement to 7.30 had to be read in conjunction with the language in the agreement in [sic] 2.7.3.2." Mr. Jewell acknowledged that vendors had the opportunity to ask questions prior to the submittal of their proposals to the Department and that Sprint did not ask any questions regarding the relationship between Sections 7.30 and 7.32 of the RFP. A letter written by Paul Eide, Customer Care Manager for Sprint, and faxed to the Department on November 21, 2000, after the opening of the proposals, stated in pertinent part: In response to the RFP, we found the liquidated damages section to [sic] vague and confusing to the exact dollar amount of a penalty situation. Our intentions were to point out the ambiguity and merely cap the amount so the winning vendor was not liable for an infinite amount of money. Although Sprint requested permission from the Department to remove the $100,000 cap on liquidated damages after the opening of the proposals, the Department did not permit Sprint to do so. Genanne Wilson, a purchasing analyst in the Department's bureau of purchasing, was the person charged with reviewing the proposals for responsiveness. Ms. Wilson determined that Sprint did not meet the requirement of Section 5.1.2 and, therefore, failed to meet the mandatory responsiveness requirements of the RFP. That determination was confirmed by her bureau chief. As specified in Section 6.1 of the RFP, further evaluation was not performed on Sprint's proposal. The evidence submitted by Sprint is not sufficient to establish that Sprint's proposal was responsive. Rather, the evidence establishes that Sprint chose to alter or modify the Supplemental Proposal Sheets even though those who submitted proposals were advised in Sections 5.1 and 6.1 that failure to meet any of the mandatory responsiveness requirements would render a proposal non-responsive and result in rejection of the proposal and that further evaluation would not be performed. Sprint's failure to signify its understanding and agreement to Section 7.30 by initialing the supplemental proposal sheets without more resulted in a failure to meet the mandatory requirement in Section 5.1.2. Sprint's failure to meet the mandatory requirement constitutes a material deviation from the RFP. The Department's determination that Sprint's proposal was non-responsive was consistent with the clear, express language of the RFP which informed proposers of mandatory requirements and that proposals found to be non- responsive would not be further evaluated. Sprint's proposal was not responsive to the RFP because it failed to meet a mandatory requirement and it contained a material deviation. Both defects arise from Sprint's attempt to limit its exposure to liquidated damages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Corrections enter a final order dismissing the bid protest filed by Sprint. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. 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 6th day of April, 2001.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, First Federal Savings and Loan Association of Putnam County (petitioner or First Federal), owns and operates a full service savings and loan institution in the Palatka, Florida area. As a part of its regular business operations, petitioner utilizes the services of Florida Informanagement Services, Inc. (FIS), a data processing servicing firm which provides bookkeeping and data processing services. In performing these services, FIS collects financial data from computer terminals located at petitioner's offices and returns processed data in the form of financial statements, payrolls, tax reports, accounts receivable and payable statements, and related information to petitioner. Respondent, Department of Revenue (DOR), is the state agency charged with the responsibility of enforcing the Florida Revenue Act of 1949, as amended. Among other things, DOR performs audits on taxpayers to insure that all taxes due have been correctly paid. To this end, a routine audit was performed on petitioner covering the audit period from June 1, 1985, through December 31, 1989. After the results of the audit were obtained, and an initial assessment made, on September 13, 1991, DOR issued a notice of decision wherein it proposed to assess petitioner $43,204.91 in unpaid taxes. After a petition for reconsideration was filed, DOR issued its notice of reconsideration reducing the assessment to $37,805.92. The parties later reached an agreement as to all issues except an assessment of $11,476.12 for unpaid sales taxes plus applicable interest and penalties. The taxes relate to a charge on the monthly statement issued to First Federal by FIS and which is identified as "total data communications". The assessment concluded that the data communi-cations charge is a taxable sale of a private communication service or a telecommunication service within the meaning of Subsections 203.012(4)(a) and 203.012(5)(a), Florida Statutes (1989). Contending that the assessment should be withdrawn, petitioner initiated this proceeding. The Services Provided by FIS Established in 1968 by a group of savings and loan institutions, FIS is a data processing service bureau headquartered in Orlando, Florida, and which contracts with approximately one hundred clients, all savings and loan institutions, to provide comprehensive data processing and accounting-type services. Its sole purpose is to provide its clients with state of the art data processing services at an economical shared cost. The services being rendered here are commonly provided to banking institutions throughout the state by FIS and a number of similar data processing companies. FIS utilizes a network of long distance telephone lines leased from various telephone companies located throughout the state to collect financial transaction data from each of its member clients, including petitioner. Keyboards are utilized by bank employees at each office to input financial transaction information (e. g., a deposit to or withdrawal from a checking account) to a "data line" or communication channel, which is a multi-link long distance communication pathway leased by FIS from a telephone company. This information is collected by a front end processor and transmitted through the data line to the computer system (mainframe) located at FIS headquarters in Orlando. The computer acknowledges receipt of the transaction, records and processes the transaction, and sends a response back through the data line to the sending terminal. This process is repeated hundreds of times each day for every terminal located at each bank office. At the end of each business day, FIS processes all of the transaction data collected during the day into comprehensive reports which summarize such activities as loan and account balances, bank department activities, automatic teller transactions, and similar information. These reports are then delivered to the banks by courier the next morning. It is noted that during the first two years of the audit period, First Federal had a single data line with twenty-six terminals. In 1987, a second data line was added due to an increase in terminals. Today, First Federal has four offices with a total of forty-eight terminals on two data lines. FIS and its clients have entered into an information processing agreement which governs the provision of services and their price. This contractual relationship between FIS and First Federal began in 1974. Copies of the 1982, 1985 and 1987 agreements have been received in evidence as respondent's exhibits 6 and 7 and petitioner's exhibit 4, respectively. Paragraph 4.(c) of the first two agreements provides that "(t)elecommunications for on-line services will be provided by FIS as part of this agreement" while the 1985 agreement also provides that "(p)rice increases charged to FIS by telecommunications senders will be passed on to the institution". The copy of the 1987 agreement introduced into evidence is incomplete but the testimony suggests that except for the word "telecommunications" found in paragraph 4.(c) of the earlier agreements, the same provisions appear in the more recent agreements. The Data Communications Charge FIS issues on a monthly basis an itemized statement for its services. Among the charges on the statement is one labeled "total data communications", which is based upon the total number and types of computer terminals which can access the FIS computer. The charge is not based on the actual cost of establishing and maintaining the communication pathway but rather is assessed equally upon all FIS clients as an identical monthly flat fee per terminal charge of $86. The same flat fee per terminal charge is assessed regardless of the number of computer terminals utilized by an institution, the number of transactions per terminal, the amount of telephone time consumed, or the geographic distance between the FIS mainframe computer and the customer's location. Thus, the same fee per terminal would be assessed on a bank in Orlando a few blocks from the mainframe computer as one located in Pensacola or the Florida Keys. The data communications charge represents a number of cost elements including the establishment and maintenance of the FIS mainframe computer system, research and development, technical support, company overhead, and the cost of the leased telephone lines. However, the per terminal charge of $86 is neither a direct nor indirect pass-through by FIS of the actual cost of establishing and maintaining the communications link with any individual customer. Is the Transaction Taxable? DOR acknowledges that the various data processing services that First Federal purchases from FIS, which is acting as a "service bureau" under Rule 12A-1.032(6), Florida Administrative Code, are "professional services" and are exempt from taxation under Subsection 212.08(7)(v)1., Florida Statutes. It also admits that as of the date of hearing, it had no "firm" policy on the issue presented herein and was still in the process of developing one. Even so, DOR contends that the services identified as "total data communications", which include the communication network through which FIS collects the raw financial data from its clients for processing, are taxable since these services constitute a private communication service as that term is defined in Subsection 203.012(4)(a), Florida Statutes (1989). There, the term is defined as a communication service that entitles a subscriber "to exclusive or priority use of a communication channel." DOR first relies upon the fact that during the audit period FIS and First Federal had entered into agreements for FIS to provide First Federal with "telecommunications" for its "on line" services. DOR construes this language in a literal sense to mean that FIS is "selling" a telecommunication service. In addition, the agreements allow FIS to increase the data communication charges based upon potential increased telephone costs to FIS. Again, DOR interprets this language as further evidence that FIS is merely reselling a telephone service to its clients. DOR also points out that First Federal has a reasonable certainty of getting its communication through on the communication channel and that no other communication can take place on the line while First Federal is transmitting or receiving a message. It considers irrelevant the fact that First Federal may not have priority or exclusive rights over any other FIS client having access to the FIS data collection system. Thus, DOR concludes that First Federal has "exclusive or priority use" of a communication channel within the meaning of the law. It further concludes that FIS is engaged in the sale of a private communication service (via the leased telephone lines) which gives First Federal access to FIS's computer. The evidence shows that the computer terminals located at petitioner's offices are commonly referred to as "dumb" terminals whose sole function is data input, that is, to transmit data from the institution to the computer mainframe. They cannot be utilized to access the FIS mainframe to perform any type of individualized date processing or other analysis. Further, they cannot communicate with each other using the data lines nor can they communicate with any other financial institution or other computer system. In addition, the lines cannot be used for regular voice communication, and when the institution is closed, the lines cannot be used for any other purpose. Over ninety percent of FIS member institutions share portions of one or more data lines with other FIS clients. Although during the audit period First Federal did not share its two lines with another institution, if one should open an office in the Palatka area and utilize FIS's services, its terminals would be placed on the unused portion of First Federal's lines, assuming such unused capacity is then available. In addition, all of the data collection and processing services are controlled directly by FIS. Thus, no FIS client has any priority in transmitting transaction information or obtaining data processing services over any other FIS customer, regardless of size or geographic location. Rather, the data is collected by FIS according to a pre- determined polling system controlled by a communication processor. Since a single data line can collect information from as many as thirty individual computer terminals, the polling system must "poll" each of those thirty terminals in numeric sequence to determine if the terminal has any data to transmit. Once the polling system has "polled" a particular terminal, the terminal is unable to transmit data until all other terminals have been polled. Further, while a message is being transmitted to or received from the computer mainframe, no other transmissions can take place on the data line, and there is no provision in the system to interrupt a transmission. Processed data is then returned to the institution according to the same numeric cycle. Therefore, no institution has "use" of a data line other than that which is directed by FIS, and the fact that a client can be reasonably assured that FIS will collect its data transmissions in a timely manner does not equate to a "priority use" of the communication pathway. The overall cost of the telephone line "network" represents a substantial portion of the total data communication charges assessed to each customer. However, the terminal charge made to each FIS customer is not truly representative of the cost to FIS of obtaining and providing the actual communications link between FIS and an individual bank. As noted earlier, and by way of example, the cost of establishing and maintaining a telephone link between FIS and a small bank in the Florida Keys or the Panhandle would substantially exceed the data communications charge assessed to those institutions. FIS receives telephone bills from every local and regional telephone company from which it leases telephone lines. During the audit period, it was not uncommon for FIS to receive between seven hundred and one thousand telephone bills per month for services to approximately eighty-four full service data processing clients. These bills included both sales and gross receipts taxes and were paid by FIS on a monthly basis. The FIS accounting department does not analyze the individual charges on the various statements to determine the monthly cost of a data line to an individual customer, nor are the charges made to FIS by the various telephone companies for each FIS client rebilled to any particular institution, either directly or indirectly. Rather, FIS absorbs the cost of the entire telephone network as a part of its normal business expense. The earlier information processing agreements refer to "telecommunication services" being provided under the agreement. However, the agreements also refer to the existence of one or more third party providers (i.e., regulated telephone companies) of the actual telephone service, and FIS makes no charge for "telephone service". While the agreements allow FIS to increase the data communications charges based upon the potential increased telephone costs to FIS, the charges assessed to FIS customers are unrelated to the actual cost of providing the service between any particular institution and the computer. Indeed, the provision simply allows FIS, when deemed to be necessary, to increase the terminal fee based upon an increase in one of its many cost components. Even if this right is exercised, any increase in that charge would be equally assessed on all clients throughout the state, regardless of their size or location. However, it should be noted that FIS has experienced a substantial increase in costs in providing the telephone service in recent years, but has not raised the data communication charge to any client since 1986. FIS has never charged First Federal for "telephone service". It is irrelevant to the institution how FIS establishes or designates its charges. If the data communication charge was deleted and the costs of the other tax exempt charges increased accordingly, First Federal would still continue to utilize FIS's services. During the audit period, FIS was not registered with DOR as a provider of private communication services. Indeed, its only business is providing data processing and accounting-type services. If it was reselling private communication services, as DOR suggests, it would have to register with DOR and pay a 1.5 percent gross receipts tax on the actual cost of operating the system. DOR recently concluded an eighteen month audit of FIS for the period 1985-1989 and determined that FIS was not liable for gross receipts tax on the sale of any alleged telecommunications services. Finally, testimony by an expert who served as DOR executive director during most of the audit period established that when the law was amended effective July 1, 1984, to impose both sales and gross receipts taxes on the sale of private communication services, DOR interpreted the amendments to apply to those providers who were selling communication services which escaped taxation by bypassing the existing telephone companies or other regulated utilities. This included those who provided communications by microwaves, satellites, privately owned telephone lines and "smart buildings", which utilize a combination of both public and private communication systems. The expert further established that if the issue had been raised during his tenure, DOR would not have construed the activity here to be a taxable sale of a private communications service since neither FIS nor its clients were operating outside the existing telephone company pathways thereby escaping the sales and gross receipts taxes. In summary, the evidence supports a finding that First Federal does not have exclusive or priority use of the data lines and accordingly the challenged service cannot be considered a private communication service. In addition, because FIS could not function as a data processing company without the data collection system, which is an integral part of its comprehensive data processing services, the collection of raw financial data must be construed as a tax exempt service. Therefore, the assessment against First Federal should be withdrawn.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order withdrawing (rescinding) the assessment against petitioner. DONE AND ENTERED this 5th day of April, 1993, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2763 Petitioner: Partially accepted in finding of fact 1. Partially accepted in findings of fact 2 and 3. Partially accepted in findings of fact 4 and 6. 4-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 7. 10-12. Partially accepted in finding of fact 9. Rejected as being unnecessary. Partially accepted in finding of fact 10. 15-16. Partially accepted in findings of fact 7 and 10. 17-18. Partially accepted in finding of fact 8. 19-20. Partially accepted in finding of fact 13. 21-23. Partially accepted in finding of fact 14. 24. Partially accepted in finding of fact 16. 25-27. Partially accepted in finding of fact 15. 28. Partially accepted in findings of fact 11 and 12. 29-30. Partially accepted in finding of fact 11. 31-35. Partially accepted in finding of fact 12. 36. Partially accepted in finding of fact 5. 37-39. Partially accepted in finding of fact 18. Rejected as being unnecessary. Partially accepted in finding of fact 17. Partially accepted in findings of fact 3 and 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 10. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 10. 9. Rejected as being contrary to more credible and persuasive evidence. 10-13. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Mr. Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, Esquire General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Patrick J. Phelan, Jr., Esquire P. O. Box 669 Tallahassee, FL 32302 Lealand L. McCharen, Esquire Department of Legal Affairs The Capitol-Tax Section Tallahassee, FL 32399-1050
The Issue The issue for consideration in this case is whether Respondent's certification as an electrical contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board (Board) was the county agency responsible for the certification of members of the construction trade and the regulation of that trade in Pinellas County, Florida. Respondent, Gabriel Varro, was certified as an electrical contractor by the Board and held such certification at all times pertinent hereto. On June 18, 1998, Nicholas Sasso, a building inspector with Pinellas County, visited a construction site at 24698 U.S. Highway 19 in Clearwater, Florida, where Respondent was engaged in electrical work. Mr. Sasso was supposed to conduct an inspection of electrical work done by the Respondent at that site but when he arrived at the construction site, at 11:45 a.m., was unable to gain entry to the site. At that time, Mr. Sasso called Respondent by telephone and left a message for Respondent to call back to reschedule the inspection. Respondent did not call in for re-inspection until October 23, 1998, over four months later. In response, however, Mr. Sasso again went to the site for an inspection on that day, where he found at least five violations of the building code for which he issued red tags (requirements for correction). At that point, Respondent had 15 working days to take corrective action, pay the red tags, and call for re-inspection. Mr. Sasso also called Respondent and left a message on the answering machine, but Respondent did not call back. On December 8, 1998, the Building Department's computer produced a notice of Respondent's failure to take sufficient corrective action or pay the red tags. Mr. Sasso returned to the site on November 16, 1998, for a follow-up and found that the Respondent had failed to take the required corrective action. Mr. Sasso returned to the site on December 8, 1998, and found the violations had still not been corrected. On December 30, 1998, the computer again indicated Respondent's failure to correct or pay the red tags, so Mr. Sasso went to the site, saw the deficiencies had not been corrected, and issued to Respondent, a Notice of Violation for failure to take corrective action and to pay red tags, and for electrical violations of the National Electrical Code and/or the standard building code which he had observed on several prior official visits to the construction site. Respondent was advised on the Notice of Violation that failure to correct the deficiencies within 15 working days of the citation would result in a court citation. Respondent called Mr. Sasso that same day, upon receipt of the Notice of Violation, and indicated he would comply with the requirements of the code, but he had not done so when Mr. Sasso returned to the site on February 4, 1999, to conduct a follow-up inspection, appropriate action has not been taken. Respondent claims he paid the red tags even though he did not cause the defects; and requested the Building Department to take his name off the permit. Respondent explained the mix-up by claiming the owner of the property had taken out the permit himself and put his, Respondent's, name on it as contractor because Respondent had agreed to do part of the project to correct some work done improperly by a tenant of the park which had resulted in a violation being issued to the park owner. The majority of the deficiencies discovered, Respondent claims, were located inside a structure on the property to which he never got access. Respondent also contends he limited his work to correction of an improper connection from the meter to the riser. He claims he advised the property owner that the only way he, Respondent, would call for an inspection would be if he were provided access to the structure so he could let in the inspector. It appears that because of a subsequent determination that the entire project violated the zoning laws, the job was cancelled by the owner. On February 17, 1998, Mr. Sasso also observed electrical work being carried on at an RV park in Pinellas County. Because Mr. Sasso could not recall any permit having been pulled for electrical work at that site, he stopped to see what was going on and identified himself to the workman on the job. The worker identified himself as Respondent and gave Mr. Sasso his card. Respondent advised Mr. Sasso of what he was doing, and when Mr. Sasso advised Respondent that he could not legally do the work without first obtaining a permit, Respondent indicated he was going to get it. Mr. Sasso noted that a trench had been dug near a power line, creating a potentially dangerous situation, and that five 50-watt electrical outlets had been installed on pedestals outside the front of the clubhouse. This was confirmed by the proposal submitted to the client by Respondent on September 2, 1998, and accepted by the client on December 4, 1998. The proposal called for the electrical permit to be included in the total contract price of $7,000. Respondent admits to giving the owner of the property a proposal for electrical work to be done, but claims, as the proposal form indicates, the owner was to dig the trench. The owner had the trench dug, as called for, and also placed the pedestals. The digging and the placing of the pedestals were an integral part of the project which Respondent had agreed to perform, and those actions required a permit to be issued prior to starting the work. The required permit was not obtained by Respondent or anyone else, and the work in progress has not been completed. Petitioner has suggested that Respondent be fined $750.00 for the violation alleged in Count One; $300.00 for the violation alleged in Count Two; and $750.00 for the violation alleged in Count Three. Counts One and Three are classified by statute as "major" violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board, enter a final order assessing an administrative fine of $1,050.00 for the violations alleged in Counts One and Two. DONE AND ENTERED this 11th day of August, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Gabriel Varro 1910 Union Street Clearwater, Florida 33763-2249
The Issue Whether Petitioner's application for a telephone salesperson license should be approved.
Findings Of Fact Respondent, the Department of Agriculture and Consumer Services (Department), is the state licensing and regulatory agency charged with the responsibility of administering and enforcing Chapter 501, Part IV, Florida Statutes, the Florida Telemarketing Act. On or about November 29, 1999, Petitioner, Gary A. Pappas (Petitioner), applied for licensure as a telephone salesperson. By letter dated February 10, 2000, the Department issued a letter denying Petitioner's application for licensure. According to the letter, the basis for denial of the license was Petitioner's felony conviction and his failure to disclose information relative to the felony conviction on his licensure application. As a part of the Department's application review process, a background investigation is conducted on each applicant. In this case, the Department had such an investigation done on Petitioner. The results of the background investigation of Petitioner revealed that he had been charged and convicted of a felony offense. According to the background investigation report, on October 17, 1988, in Pinellas County, Florida, Petitioner was convicted of a felony offense, constructive possession of an illegal substance. The report further indicated that adjudication was withheld. The Department's application form for licensure as a telephone salesperson contained Question 3 which requested information concerning the applicant's criminal history. In pertinent part, the question is as follows: 3. Please complete this section if you: a. Have previously been arrested for, convicted of or are under indictment or information for a felony and, if so, the nature of the felony. Conviction includes a finding of guilt where adjudication has been withheld. * * * If you have not been subject to any charge set forth above and are not subject to any current or restrictive order, then mark your initials in the [preceding] box. Your true name at the time of the action: Court or administrative agency rendering the decision, judgement [sic] or order: Date of conviction, judgement [sic] or order: / / Docket# Name of governmental agency which brought the action: Nature of conviction, judgement [sic], order or action: In response to Question 3, Petitioner initialed the box next to the statement, "If you have not been subject to any charge set forth above and are not subject to any current or restrictive order, then mark your initials in the box. The term "charge set forth above" referred to the offenses described in subsections a, b, c, d, and/or e of Question 3. In this case, only subsection a of Question 3 is relevant. By initialing the box mentioned in paragraph 7 above, Petitioner was indicating that he had never been convicted of a felony. On November 29, 1999, Petitioner signed his completed application for licensure as a telephone salesperson. On the application, immediately above the applicant signature line, the following statement was printed in bold letters: I DECLARE UNDER PENALTY OF PERJURY THAT ALL OF THE INFORMATION PROVIDED IN QUESTIONS 1-3, AND IN THE EXHIBITS ATTACHED HERETO, IS TRUE AND CORRECT. At the formal hearing, Petitioner admitted that in 1988, he had been convicted of a felony and adjudication had been withheld. He also testified that the conviction was for the sale and possession of marijuana. Although Petitioner had been convicted of a felony, he failed to disclose the conviction on his application for licensure as a telephone salesperson. Petitioner testified that he was misinformed and had misread and misinterpreted Question 3. Petitioner also testified that because the incident occurred more than ten years ago and adjudication was withheld, he thought the conviction did not have to be disclosed on the application. Petitioner's stated justification for failing to disclose his 1988 felony conviction lacks credibility given the clear wording of Question 3 on the application for licensure. Notwithstanding Petitioner's statements to the contrary, his testimony established that he was capable of reading and interpreting the questions on the application, including Question 3. Petitioner has had no felony convictions since the aforementioned conviction in 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioner's request for licensure as a telephone salesperson. DONE AND ENTERED this 13th day of September, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 13th day of September, 2000. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Suite 508 407 South Calhoun Street Tallahassee, Florida 32399-0800 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Gary A. Pappas 2555 Oak Trail North, Number 114 Clearwater, Florida 33764
The Issue The issues to be resolved in this proceeding concern whether Petitioner materially failed to comply with certain state contract conditions and whether, pursuant to pertinent rules, the Petitioner should be removed from the approved "vendor's list" and thereby precluded from bidding on proposed procurements of the Respondent agency.
Findings Of Fact Southern Communications Group was a partnership consisting of Mr. Daus, Timothy Barfield and another individual as general partners at the time Southern's bid for the telephone procurement in question was submitted. Southern is on the approved vendor's list maintained by DGS and is a qualified State contractor. Some time in early January 1988, after the subject contract was awarded to Southern, Tabco Enterprises, Inc. acquired Southern Communications Group, at which approximate time Mr. Barfield assumed management of the operation of Southern Communications. The Division of Purchasing of the Department of General Services is the state agency responsible for preparation and administration of state contracts for various commodities. State agencies are obligated to use these contracts. The Division of Purchasing of DGS is responsible for maintaining a list of approved vendors and has authority under Rule Chapter 13A-I, Florida Administrative Code to remove vendors who failed to perform as obligated under State contracts. One of the State wide commodities contracts prepared and administered by the Division of Purchasing is for "telephone instruments - not installed". Ms. Cherrie McClellan is a Purchasing Specialist with the Division who is responsible for the administration of this contract. She prepared the bid packets for the telephone instrument contract underlying the dispute in this case, contract No. 482-730-030-W (the contract). She prepared the bidding documents involved based upon general conditions promulgated by the Division, certain special conditions she prepared herself and technical specifications supplied by DGS's Division of Communications. She then issued the bid package to vendors who were on the previously existing mailing list, including the Petitioner. General condition Four E of the Invitation to Bid (ITB) states in pertinent part: It is understood and agreed that any item offered or shipped as a result of this bid shall be new (current model at the time of this bid) Prior to the bid award DGS had already interpreted and expressed the policy to the effect that the term "new" meant unused, never before installed, telephone equipment which is an acceptable current production model. The agency received a number of bids including one from Southern. During the bid evaluation Ms. McClellan noted that one bidder's price seemed unusually low based upon her experience with new telephone prices. She examined that bid and learned that the low prices were for re-manufactured as opposed to new telephone equipment. This bidder was notified of this fact and was thereafter disqualified from the bid award process for its failure to offer new equipment. Thereafter Ms. McClellan also noticed that prices in the bid submitted by Southern were unusually low and similar to those of the disqualified bid. Consequently, she attempted to contact Mr. Norris Daus who had submitted the Southern bid. After a number of unsuccessful efforts, she reached Mr. Daus by telephone on October 3, 1987 and inquired whether his quoted prices were for new as opposed to re- manufactured or refurbished instruments. Mr. Daus verbally confirmed that the prices were for new equipment. Mrs. McClellan's supervisor, Mr. John Fain, was also aware of the unusually low prices submitted by Southern in response to the ITB and he too conversed with Mr. Daus by phone. According to Mr. Fain, Mr. Daus confirmed that he understood that the bid called for new equipment. Mr. Daus, however, at hearing, testified initially that he had not spoken with Mrs. McClellan and then later said that he had no recollection of speaking with her. He contended that she had called him in January of 1988, after the contract was entered into. His testimony is somewhat equivocal and is not deemed as accurate as that of Mrs. McClellan and Mr. Fain and therefore, based upon the totality of the corroborating circumstances in evidence, including Mrs. McClellan's handwritten memo recording her efforts to contact Mr. Daus, is rejected in favor of her testimony and that of Mr. Fain. In any event, in December of 1987, Southern was awarded the contract based in part on the verbal representations of Mr. Daus to the effect that the telephones to be supplied were to be new instruments and not re-manufactured or re-furbished ones. The contract term commenced on January 20, 1988 and should have run through January 19, 1989. Early in the contract period, Mrs. McClellan received a complaint from a State agency reporting that Southern had supplied telephones under the contract which were not new instruments. She telephoned Mr. Barfield with Southern to inquire about this matter and requested that he come to her office to discuss the agency's complaint. Mr. Barfield testified, however, that the visit to her office was at his own instigation in order to learn more about his obligations under the contract and that only general issues about his obligations under the contract were discussed. Mrs. McClellan, however, discussed specifically her prior conversation with Mr. Daus, her concerns that the contract called for new equipment only and that they had reports that re- manufactured equipment was being supplied in some instances. She further testified that Mr. Barfield agreed to stop shipping re-manufactured instruments and to supply only new equipment thereafter. In view of the fact, established in evidence, that DGS had already expressed concerns to Mr. Daus about the provision of re-manufactured equipment instead of new before the conversation with Mr. Barfield, Mrs. McClellan's testimony is accepted concerning the subject matter of and the communications made during the meeting in question over that of Mr. Barfield. Later, in early 1988, Mrs. McClellan received other agency complaints concerning Southern's performance under the contract to the same effect, that is, that re-manufactured telephones instead of new ones were being supplied. After reviewing a number of these complaints, she again telephoned Mr. Barfield and confronted him with the complaints, directing him in March, 1988, to ship only newly manufactured equipment. Neither Mr. Daus nor Mr. Barfield had outwardly disagreed with Mrs. McClellan's interpretation of the word "new" and neither requested any written interpretation of that term. Mr. Barfield admitted that Mrs. McClellan directed him, in March 1988, to ship only newly manufactured equipment. Mrs. McClellan forwarded the complaints from the agencies which had received non-compliant instruments from Southern to Mr. Barfield. At least one non-compliant telephone instrument had been delivered to the University of North Florida. Non-compliant ten button telephones were delivered to the Palm Beach Detention Center, two non-compliant six button DTMF telephones were delivered in Crestview, Florida on behalf of the Apalachee Correctional Institution and two non-compliant telephones were supplied through the Apalachee Correctional Institution for delivery to DeFuniak Springs. Additionally, a non-compliant telephone instrument was delivered to District 11 of the Department of Health and Rehabilitative Services. DGS' Exhibits 6-10 relate to these complaints. Mr. Barfield received all of these complaint letters from Mrs. McClellan but only replaced telephone instruments at the University of North Florida with new, unused ones. Mrs. McClellan received certain telephones from the agencies which were allegedly non-compliant, re-manufactured ones which had been supplied these agencies by Southern. She forwarded these to Florian "Sam" Houston, the Supervisor of the Access Systems Section, Division of Communications. She requested that he examine the telephones in question to determine if they were in compliance with the contract requirements, that is, new and unused telephones, or alternatively, whether they were re-manufactured telephones. Mr. Houston is a telecommunications expert with over 17 years experience in the communications and aerospace telecommunications industry. His section is responsible for all telephone systems supplied to the State agencies. His staff prepared the technical specifications for the contract in question and he himself reviewed those specifications. He and his staff examined the three telephones submitted for inspection and determined that they contained used parts and were therefore not new telephones as required by the contract. Mr. Houston sent Don Daniels of his staff to perform field inspections of certain telephones supplied by Southern. Mr. Daniels thus found four non- compliant telephones in West Palm Beach, two in Crestview and two more in DeFuniak Springs, referenced above. DGS Exhibit 6 is the notification from the agency to Southern that a sample telephone instrument had been found to be non-complaint with the contract specifications and DGS thereby gave Southern Communications ten days to correct that situation or to be found in default on the contract. DGS Exhibits 7-10 are similar letters informing Southern of similar failures to perform with reference to the other non-compliant telephones referenced above. Each letter gives Southern ten days to comply or be found in default. A re-manufactured telephone involves a previously used instrument which is taken out of service, disassembled, thoroughly cleaned with any broken or unserviceable parts being replaced. It is then re-assembled to certain standards. When a re-manufactured phone is resold for further use, it must meet Federal Communications Commission standards. Those standards refer, however, to the transmitting and receiving capability and do not relate to the durability of the instrument itself. "Refurbishing" generally involves a less detailed re- juvenation process involving cleaning and placing in serviceable working order. Both terms describe the process of creating a finished product which contains used original parts. Mr. Michael Johnson, whose company supplied the re- manufactured instruments to Southern Communications which are in dispute here established that those terms are in reality interchangeable. In any event, DGS uses a ten year life expectancy for telephones on State contracts assuming those are new telephones. Ten years is the normal life expectancy accepted in the industry for new telephones. The life expectancy for re- manufactured instruments is significantly less and in some cases only five years. A decreased life expectancy of such instruments is due to the re-use of used components, some of which may already surpass the original life expectancy in the original condition instruments. In fact, according to Mr. Johnson, his company might even use twenty year old parts in some re-manufactured phones. While it is true that re-manufactured phones carry identical one year warranties as do new phones, the re-manufactured phones are not the service equals of new phones because re-manufactured instruments will not last as long and any telephone is used much longer than the warranty period itself. Re-manufactured phones appear to the casual observer and to the layman to be new phones. Casual inspection of such a telephone will not reveal any differences from a new telephone. The difference between new and re-manufactured instruments only becomes obvious when their covers are removed and they are disassembled and inspected. When State agency telephones are no longer needed for whatever purpose, they are declared surplus and sold or traded in. When they are traded in, re-manufactured phones have a significantly lower value than new phones, largely due to their used life expectancy versus that of new telephones. It is also true that re-manufactured telephones cost both the supplier and the purchaser significantly less than new instruments. Southern does not dispute that it supplied re- manufactured telephone instruments to users of the State contract in question. It maintains, however, that re-manufactured phones are the equivalent of new phones and that the specifications in the ITB documents regarding new phones was not specific enough to show any indication that re-manufactured phones were non- compliant and that since re-manufactured phones meet "FCC" specifications and carry the same warranty as a new telephone that they are no different than new telephones. In view of the above findings, however, re-manufactured phones are not the functional equivalent of new telephones because of their shortened useful life. In any event, Southern is belatedly disputing the nature of the specification regarding new telephones in the ITB and in the contract. It accepted without protest the provision in the Invitation to Bid documents and in the contract concerning "new" telephones, quoted above. Moreover, through communication by Mrs. McClellan to Mr. Daus before the contract was actually awarded, Southern was verbally informed of the Department's policy concerning what it deemed new phones to mean and that policy was proven by the testimony of Mrs. McClellan concerning her conversation by phone with Mr. Daus, as well as the fact that she had previously stricken the bid proposal of another vendor because that vendor was proposing to supply re-manufactured telephones. Southern should have known at the time that it was awarded the contract that re-manufactured equipment was not acceptable. Mr. Fain and Mrs. McClellan had provided adequate notice of this by their verbal contact with Mr. Daus. Clearly Southern knew that re-manufactured equipment would not be acceptable well before it cancelled the contract at any rate. Mr. Barfield admitted that Mrs. McClellan directed him to ship only newly manufactured equipment in March, 1988. Neither he nor Mr. Daus, before or after award of the contract, ever disagreed openly with the agency's interpretation of the word "new" in the specifications. Neither of them, nor any person on behalf of Southern, requested any written interpretation or clarification of that word in the specifications prior to bidding or at any time thereafter. The exact number of telephones supplied as re- manufactured by Southern is unknown. Southern supplied a total of 1723 telephones. The only way to determine the exact number of re-manufactured instruments would be through field examination of each phone sold by Southern or possibly through records that Southern may maintain concerning orders from its suppliers, and its inventory, if such exist. They are not in evidence however. In any event, Southern continued to ship re- manufactured instruments even after the March 9, 1988 conversation between Mr. Barfield and Mrs. McClellan wherein she instructed him to cease that practice. Mr. Barfield's testimony is indefinite on the question of when Southern ceased shipping re- manufactured instruments under the contract, if at all. Mr. Barfield testified at one point that only originally manufactured equipment was shipped after his March, 1988 conversation with Mrs. McClellan, but he later testified that he continued to ship re-manufactured equipment after that conversation, but stopped at some point thereafter. He did not establish when that was. Although directed by the Department to replace those re-manufactured instruments with new telephones, Southern replaced no re-manufactured instruments other than those supplied to the University of North Florida. Mr. Barfield stated in his testimony that he did not intend to replace any more re- manufactured telephones. DGS has not followed a policy or practice of accepting re-manufactured equipment pursuant to such a contract. Mr. Herman P. Barker is an expert in State procurement. He has been employed in that field since 1967. He was unaware of any instance where refurbished or re-manufactured telephones have been accepted when a contract calls for new equipment. Agencies using the State contract for such purchases typically deal directly with the approved contractor. The agencies receive the items which are the subject of such a contract and determine themselves whether the proper models have been delivered. The agencies, however, do not have the necessary expertise to perform technical evaluations of each instrument received and are not required under the terms of such contracts, including this one, to disassemble goods in order to make inspections and evaluations before acceptance upon the delivery of the instruments. If an agency cannot resolve a problem with a vendor, the agency then refers the matter to DGS and the DGS Purchasing Agent for the commodity in question gathers information about the dispute and contacts the contractor. Two contract users contacted Southern directly, Mr. McMullen of the University of North Florida and William A. Walker. Mr. Walker asked Southern to supply new instruments and agreed to return the re- manufactured ones upon receipt of the new instruments. Southern did not respond to Mr. Walker's request for new telephones nor did it replace other telephones as directed by DGS. Southern has taken the position that the agencies are precluded from challenging any purported nonconformance with the contract after they have accepted delivery of the instruments. Southern maintains that the agencies had an opportunity to inspect the instruments upon receipt, and if no complaint was registered with the contractor upon that initial inspection and acceptance, then title to the instrument passed and no complaint of non-performance of the contract with regard to those instruments may be thereafter asserted. The Petitioner contends that the place and method of inspection was fixed by the contract between the parties here as being the place of destination.1/ The fact remains, however, that the purchasers or recipients of the goods under the contract here, the agencies, did act within a reasonable time after delivery to complain of the nonconformance of the instruments. That is, the defects in the instruments were latent defects, not readily discernible upon delivery of the instruments to the purchasers and users because the instruments did operate as specified. The fact that they contained used parts and were re- manufactured instruments was not readily discernible without disassembling each unit. Thus, under the circumstances of this case, involving the latent nonconformance of the instruments, the rejection of the instruments by the agencies who happened to learn, at some time after delivery, that they were previously used instruments, must be deemed to have come within a reasonable time after delivery or tender. Notification of that fact by the agency to Southern was therefore seasonable./2 The defects involved in these instruments are not such that the personnel of the agencies should have discovered the nonconformance upon delivery because the nonconformance with the contract specification was not readily discernible to anyone who had no expertise in the manufacture and assembly of telephone instruments. The seller, Southern, was informed within a reasonable time after personnel of DGS, who did have expertise in such matters, discovered the nonconformance (when Mr. Houston's employee performed the inspections and evaluations of the instruments about which the agencies had raised questions.) Thus it is found that the "buyers", the agencies, did notify Southern within a reasonable time after they should have discovered the "breach".3/ Southern did not replace any other telephones as directed to by DGS except for those supplied to the University of North Florida. In response to some of DGS' letters, Southern did issue United Parcel Service "call tags" or "pick up orders" to some of the agencies. Southern provided no explanation of the purpose of these call tags to the agencies. It was not shown that all these agencies had knowledge that they had been supplied re-manufactured, as opposed to new telephones, upon the point of the receipt of these call tags. Southern received one telephone to exchange in response to these call tags. The agencies needed to have phones available to them and could not relinquish the nonconforming telephones and then be forced to wait on supply of new ones without phone service during the interim. Ultimately, DGS determined that Southern Communications should be held in default for failure to supply compliant equipment under the contract and noticed Southern of its intent to remove it from the approved bidders' list.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of General Services removing Southern Communications Group, a division of Tabco Enterprises, Inc. from the State approved vendor list, until such time as that entity identifies and replaces all re-manufactured instruments which it sold under the subject contract or reimburses the Respondent for the costs of cover and re-procurement. DONE and ENTERED this 23rd day of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 October, 1989.
Conclusions Mr. Klein had a duty to operate the van he was driving on the day of the accident with reasonable care. See ss. 316.183(1), 316.1925(1), F.S. Mr. Klein breached that duty when he was distracted by a cellular phone call at or around the time of the accident or otherwise not paying full attention to the road at the time of the accident. Mr. Klein’s negligent operation of the van was a proximate cause of the accident that resulted in Angelica’s death. Mr. Klein was acting within the course and scope of his employment at the time of the accident. Therefore, the County is responsible for Mr. Klein’s negligence. Angelica violated s. 316.130(10) and/or (11), F.S., when she attempted to run across SR 436 in the middle of the block rather than at a cross-walk and, as a result, Angelica’s own negligence contributed to her death. The percentage of fault allocated to Angelica by the jury -- 39 percent -- is reasonable under the circumstances. Ms. Wagner’s failure to supervise Angelica on the night of the accident was, in my view, irresponsible and unreasonable. Ms. Wagner knew or should have known that Angelica might cross SR 436 based upon prior instances of her crossing the road without permission. Furthermore, it is irresponsible and unreasonable for Ms. Wagner to allow an 11-year-old child to be unsupervised and to stay out on her own until 9:00 p.m., which was after dark. Ms. Wagner’s negligent supervision of Angelica contributed to her death because if she had been supervised she would not have gone across SR 436 in the first place. Thus, notwithstanding the jury verdict on this issue, I find that a portion of the fault for Angelica’s death should be apportioned to Ms. Wagner and, in my view, a figure of 10 percent is reasonable. In summary, I conclude that liability for Angelica’s death should be apportioned as follows: 51 percent to the County; 39 percent to Angelica; and 10 percent to Ms. Wagner. As to the damages, I find the amounts awarded by the jury -- $8,000 in funeral expenses and $1.4 million in non-economic damages -- to be reasonable. The amount of the claim bill should be reduced to reflect a set-off of the $8,000 received by Ms. Wagner from another source (i.e., Angelica’s uncle) to pay the funeral expenses and to reflect the allocation of a portion of the fault to Ms. Wagner. As adjusted, the claim bill should be for $652,080, which is calculated as follows: $1,408,000 (verdict) x 51% (County’s revised share of liability) = $718,080 + $42,000 (taxable costs) - $100,000 (partial satisfaction by County) - $8,000 (set-off for funeral expenses paid by uncle). ATTORNEY’S FEES AND LOBBYIST’S FEES: The claimant’s attorney provided an affidavit stating that that attorney’s fees will be capped at 25 percent in accordance with s. 768.28(8), F.S. The attorney’s fees will be $163,020 if the bill is approved at the amount recommended. The lobbyist’s fees are in excess of the 25 percent attorney’s fee, and according to the contract between the claimant’s attorney and the lobbying firm, the lobbyist’s fees will be an additional 5 percent of the final claim. Thus, the lobbyist’s fees will be approximately $32,604 if the bill is approved at the amount recommended. The bill, as filed, provides that payment of attorney’s fees, costs, and lobbyist’s fees are limited to 25 percent of the final claim. If that language remains in the bill and the claim is paid in the amount recommended, the claimant will receive $489,060 and the balance of $163,020 will go towards attorney’s fees, costs, and lobbyist’s fees. If that language was not in the bill, the claimant would receive only $456,456. LEGISLATIVE HISTORY: This is the second year that this claim has been presented to the Legislature. Last year’s bill, SB 62 (2007), was not referred to committee. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 26 (2008) be reported FAVORABLY, as amended. Respectfully submitted, T. Kent Wetherell Senate Special Master cc: Senator Gary Siplin Faye Blanton, Secretary of the Senate House Committee on Constitution and Civil Law Counsel of Record
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2013.
Findings Of Fact Each of the Petitioners and the Intervenor in these consolidated cases are duly certificated telephone companies operating in the State of Florida subject to the jurisdiction of the Florida Public Service Commission under Chapter 364, Florida Statutes. These telephone companies, and others operating in the State of Florida, provide for the division of intrastate toll revenues through bilateral written agreements ("toll settlement agreements") between each of these companies and Southern Bell. There are apparently 16 of these separate bilateral toll settlement agreements between Southern Bell and other telephone companies operating in the State of Florida. Each of these agreements is on file with the Public Service Commission as required by law. Under these agreements each of the small telephone companies periodically report to Southern Bell their costs an revenues associated with intrastate long distance calls. Southern Bell then determines each company's share of the revenue pool generated pursuant to the intrastate toll settlement agreements, and effects the distribution of funds by sending a check to some companies and a bill to others. The amount credited or charged to individual telephone companies by Southern Bell is based at least in part on the "rate of return" language contained in each company's agreement with Southern Bell. Each toll settlement agreement contained in the record in this proceeding contains the following identical "rite of return" provision: Rate of Return--the rate of return to be applied to the intrastate average investment base will be the intrastate rate of return achieved by the Bell Company for the study period calculated in a manner consistent with the investment and cost items included in [the individual telephone company's] cost study. On May 21, 1982, the Public Service Commission issued its Order No. 10813 entitled "Notice of Proposed Agency Action" which, in part, recited the aforementioned faces and, further, under the heading "Policy Determination" set, forth the following: Upon review of these agreements, the Commission concludes that the Basis of Settlement renders these agreements to the public interest because it creates an inequitable system of cross-subsidization among local subscribers of the telephone companies. Rates are set prospectively for telephone companies based on expenses and revenues experienced during an approved test year. Sufficient revenues must be generated from services to allow the utility to achieve on its investment the rate of return authorized in the rate case. However, the settlement agreement distributes the tolls on the basis of a rate of return other than the company's authorized rate of return, i.e. on Southern Bell's achieved rate of return. As a result a company automatically will be either overearning or underearning with respect to toll revenues, depending on whether its authorized rate of return is lesser or greater than Southern Bell's achieved rate of return. If the company is overearning on the toll revenues, then revenues generated by local services will be reduced a corresponding amount. But if the company is underearning on the toll revenues, then revenues generated by local service will have to be increased to make up the difference. Because the toll revenues being distributed to the local companies are from a common pool, ratepayers of these 'underearning' companies are subsidizing the ratepayers of the 'overearning' companies. This is inequitable and contrary to the basic thrust of ratesetting as embodied in Chapter 364. Therefore we conclude that the current basis of distributing toll revenues renders the agreements detrimental to the public interest. Thus, the Commission hereby gives notice of its proposal to disapprove all settlement agreements as detrimental to the public interest that they provide for cross-subsidization among ratepayers. To not be detrimental to the public interest, toll settlement agreements must provide for settlements that do not create such cross-subsidization among the local ratepayers of the various companies. To avoid such cross-subsidization, the toll settlement agreements must compensate each company for its cost of providing intrastate toll service. This cost of service includes the cost of capital, as well as operating expenses, taxes, and investments. With respect to the equity component of the cost of capital, the return on equity must recognize the financial leverage of the company. If this proposed agency action is not protested as provided for in Chapter 25-22, F.A.C., and as explained below, the Commission will issue an order constituting final agency action disapproving all toll settlement agreements effective 30 days from the date of the order. This order will in addition direct the companies to modify the agreements and to submit the modified agreements to the Commission for review within that 30 days. The modification of the settlement agreement will result in the loss of revenues to some companies, and the gain of revenues to financial impact of this redistribution to ensure that companies do not overearn or underearn as a result of this action. This proposed agency action addresses only the detrimental effect of using the Bell Company's achieved rate of return, and no other aspects of the settlement agreements. (Emphasis added.) On May 28, 1982, the Public Service Commission caused to be published in the Florida Administrative Weekly the following notice: NOTICE is hereby given that pursuant to Section 364.07, Florida Statutes, the Public Service Commission has issued proposed agency action to disapprove all existing agreements for the division of intrastate toll revenues, on the ground that they are detrimental to the public interest because they provide for cross-subsidization among ratepayers. If by June 11, 1982, the Commission does not receive from an affected person a petition on proposed agency action, as provided in Chapter 25-22, FAC, then the proposed agency action will become final agency action. A copy of the proposed agency action may be obtained from the Commission Clerk, 101 East Gaines Street, Tallahassee, Florida 32301. It is undisputed that the Public Service Commission did not prepare an economic impact statement in conjunction with the issuance of its "Notice of Proposed Agency Action", the Commission otherwise follow the procedural requirements contained in Section 120.54, Florida Statutes, concerning the adoption of a "rule." By Final Order dated April 22, 1982, in Division of Administrative Hearings' Case Nos. 81-2201R and 81-2202R, Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, declared a rule proposed by the Public Service Commission pursuant to Section 364.07, Florida Statutes, invalid on the grounds that it failed to contain any finding that toll settlement agreements were detrimental to the public interest, and further, that the proposed rule invalidly attempted to prescribe the mechanics to be followed by telephone companies in dividing monies contained in the intrastate toll revenue pool.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin, race, and perceived disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Pierre is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the School Board was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Pierre began his employment with the School Board in 1996. For nine (9) years, he worked in the Maintenance Department and was promoted three times. His various supervisors rated his work as excellent. At all times material hereto, Mr. Pierre’s co-workers were of various ethnic groups—Haitian, Hispanic, Black/African American, Caucasian, etc. For approximately seven years, Mr. Pierre was under the supervision of Foreman John Bateman. Mr. Bateman considered Mr. Pierre to be a “fabulous” worker and recommended Mr. Pierre for promotion. Subsequent thereto, Mr. Bateman observed a change in Mr. Pierre’s behavior and attitude. Mr. Bateman discussed the changes in Mr. Pierre’s behavior and attitude with his (Mr. Bateman’s) supervisor, James Bass. Such a change in behavior and attitude was exhibited on April 27, 2004. On that date, Mr. Pierre refused to take orders from a temporary leadman, Joe Williams, in the absence of the leadman, Joe Pierrot. Mr. Bass was called to the work-site, and he spoke to Mr. Pierre regarding his refusal to follow the directives of Mr. Williams. After the discussion, Mr. Pierre agreed to follow the directives of Mr. Williams. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day. Mr. Bass testified as to the incident and noted, among other things, in the memorandum that Mr. Pierre had become “very disruptive, creating a hostile environment;” that, after the discussion, Mr. Pierre “returned to his duties without incident;” and that Mr. Pierre was “a very hard worker, but he appears to have ‘fits’ at times . . . seems to intimidate his co-workers with his attitude and overly-aggressive behavior . . . has a tendency to accuse his co-workers of not liking him because of his nationality (Haitian).” Mr. Pierre testified that he did not look at the memorandum and refused to sign it; and that he informed Mr. Bass that he (Mr. Pierre) did not have a “fight” with anyone. Another incident occurred on July 9, 2004. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day of the incident. A worker, Mike Walters, had placed a bottle of water in a refrigerator over night, and the next day, the bottle of water was missing. As Mr. Pierre was walking past Mr. Walters, he (Mr. Walters) commented that someone had taken his bottle of water. Mr. Pierre immediately took offense, became agitated, and refused to calm down, even after Mr. Walters explained to Mr. Pierre that he was making a general statement, not directed at Mr. Pierre. Only after the leadman, Mr. Pierrot, interceded did Mr. Pierre calm down. Mr. Bass included in the memorandum that Mr. Pierre appeared to believe that “everyone was out to get him”; that Mr. Pierre’s co-workers expressed being fearful of him; that Mr. Pierre was advised that such behavior was not acceptable; and that further such behavior would lead to disciplinary action up to and including termination. Mr. Bass signed the memorandum, but Mr. Pierre refused to sign it. Mr. Pierre testified at hearing that the Mr. Walters accused him of “stealing” the water but that he knew nothing about it. The undersigned finds Mr. Pierre’s testimony credible that he (Mr. Pierre) believed that he was being accused of stealing the water but that he knew nothing about the water being stolen. An inference is drawn and a finding of fact is made that Mr. Pierre became upset because of this belief. Mr. Pierre was counseled regarding his behavior. Mr. Bass and the District Maintenance Manager, Mark Dorsett, decided that a re-assignment might benefit Mr. Pierre and his co-workers. As a result, on July 20, 2004, Mr. Pierre was re- assigned from a team of workers, i.e., a crew, responsible for cleaning air conditioning coils to a crew responsible for preventative maintenance tasks. The re-assignment was memorialized in a memorandum dated July 20, 2004. The memorandum provided, among other things, that Mr. Pierre would be monitored for six months and, if the re-assignment did not improve Mr. Pierre’s relationship with his co-workers, “progressive disciplinary action” would be invoked; and that the re-assignment would hopefully improve the relationships. The memorandum was copied to Mr. Pierre. Approximately three months later, however, on October 20, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated October 25, 2004. According to the memorandum, Mr. Pierre had an argument with Sammie Riviera, Mr. Pierre’s work-partner, regarding Mr. Pierre’s tools, which “escalated to a verbal altercation.” Also, the memorandum indicated that, when Mr. Pierre returned to work, after the incident, he began accusing his co-workers of taking his missing tools, which he was unable to locate. Further, the memorandum indicated that the foreman, Jose Martell, advised Mr. Pierre that his behavior would have to “cease immediately.” Moreover, the memorandum indicated that Mr. Martell and Mr. Martell’s supervisor, Diane Caulfield, determined that Mr. Pierre would benefit from the School Board’s Employees Assistance Program (EAP). Mr. Martell and Ms. Caulfield signed the memorandum, but Mr. Pierre did not. Mr. Riviera did not testify at hearing. Mr. Pierre testified that, contrary to what others thought that he believed, he did not believe that Mr. Riviera stole his tools. Mr. Pierre testified that Mr. Riviera used his tools and dropped them on the floor; that he (Mr. Pierre) picked-up the tools and placed them in the truck; that Mr. Riviera attempted to talk to him (Mr. Pierre) but that he (Mr. Pierre) refused to talk to Mr. Riviera. In his testimony, Mr. Pierre did not deny that he and Mr. Riviera argued. On October 26, 2004, Ms. Caulfield presented Mr. Pierre with an EAP Referral Form, which stated the reason for the referral as “Anger Management – no one wanting to work with him.” Ms. Caulfield signed the EAP Referral Form, but Mr. Pierre refused to sign it. At hearing, Mr. Pierre testified that he did not recall Ms. Caulfield’s request for him to attend the EAP. The undersigned finds Mr. Pierre’s testimony to be credible, but such finding does not change or affect the undersigned’s finding that Ms. Caulfield requested Mr. Pierre to attend the EAP. Approximately 20 days later, on November 15, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated November 16, 2004. Mr. Pierre’s work-partner, Mr. Riviera, observed Mr. Pierre handling a device that he (Mr. Pierre) should not have been handling, and Mr. Riviera so advised Mr. Pierre, who became “very agitated” and was “yelling” at Mr. Riviera. Additionally, the memorandum indicated that Mr. Riviera had observed, on occasion, Mr. Pierre mumbling to himself “excessively” and “banging himself against a wall.” Further, Mr. Riviera indicated that such behavior by Mr. Pierre, together with Mr. Pierre’s exhibited temper, caused Mr. Riviera to be “fearful of his personal well-being” while working with Mr. Pierre. Mr. Martell signed the memorandum, but Mr. Pierre did not sign it. Approximately, nine months later, in August 2005, Mr. Pierre visited the Director of Maintenance, Sylvester Davis. Mr. Davis had known Mr. Pierre since Mr. Pierre began working with the School Board and had always encouraged Mr. Pierre to visit him. Mr. Davis observed that Mr. Pierre was upset about something, but Mr. Pierre was unable to explain to Mr. Davis what was happening to him (Mr. Pierre), so Mr. Davis decided to talk to Ms. Caulfield. Mr. Pierre testified that he went to talk to Mr. Davis because he (Mr. Pierre) was not feeling safe at work, believed that he (Mr. Pierre) was being “persecuted,” and believed that Mr. Davis could help. Mr. Davis met with Ms. Caulfield and expressed his concern regarding Mr. Pierre. She explained what had been happening with Mr. Pierre and showed Mr. Davis the memoranda that had accumulated regarding Mr. Pierre’s behavior. Mr. Davis suggested the EAP, and Ms. Caulfield advised him that Mr. Pierre had already been referred to the EAP. After his meeting with Ms. Caulfield, Mr. Davis became concerned regarding the safety of Mr. Pierre and the other workers. Mr. Davis determined that a Fit-For-Duty examination was appropriate. In a memorandum dated September 19, 2005, directed to the School Board’s Special Investigative Unit (SIU), which is within the School Board’s Office of Professional Standards (OPS), Mr. Davis, among other things, provided the SIU with information in order for it to conduct a Fit-For-Duty examination of Mr. Pierre. In the memorandum, Mr. Davis indicated, among other things, that Mr. Pierre’s behavior had gotten progressively worse; that a safety problem had arisen since Mr. Pierre’s work assignments required assistance, but his co-workers were refusing to work with him because of their fear of his reactions; that Mr. Pierre’s co-workers were concerned about him, had respect for him, and viewed him as an excellent worker; and that Mr. Pierre’s co-workers just wanted him to get help. Further, in the memorandum, Mr. Davis requested that a person who could speak Creole be present when the SIU spoke with Mr. Pierre. Moreover, at hearing, Mr. Davis testified that, at no time did he want Mr. Pierre to be terminated, only for him to get the help that he needed to continue to work for the School Board. Mr. Davis viewed the Fit-For-Duty examination as a way to help Mr. Pierre. Mr. Davis’ testimony is found to be credible. The Fit-For-Duty evaluation is a non-disciplinary process wherein the School Board is attempting to help an employee. School Board Policy 4004 provides in pertinent part: RULES Fit for Duty Determination Procedures (emphasis in original) The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. (Supporting Documents) SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home with pay, pending the outcome of the examination. (Letter 1) The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 48 hours. (See Attachment to Letter 1) SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Note: This is a mandatory appointment and failure to attend can result in termination of employment for failure to comply with School Board Policy 4004. (Letters 2 & 3) (emphasis in original) * * * 6. The doctor as delineated in the policy will conduct Pre-evaluation at District expense. Note: a 2nd Opinion will be at the employees expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. (emphasis in original) * * * If employee fails to attend any mandatory appointment with the assigned doctor of the designee assigned to handle the Fitness for Duty Evaluation Case per School Board Policy 4004, then a pre- disciplinary meeting is arranged and employee is notified in writing. (Letter 7) If applicable a recommendation for termination is sent to the School Board of Broward County based on just cause, for insubordination, failure to comply with School Board Policy 4004. (Letter 8) By letter dated September 27, 2005, which was hand- delivered to Mr. Pierre, the Executive Director of OPS, SIU, Joe Melita, notified Mr. Pierre that Mr. Davis had requested a Fit- For-Duty Assessment, pursuant to School Board Policy 4004, and that Mr. Pierre was required to submit to a psychological examination at School Board expense. Mr. Melita provided further in the letter that Mr. Pierre was directed to choose a doctor from a list of doctors, which was attached to the letter, indicating his (Mr. Pierre’s) first and second choice, within two days of receipt of the letter; that the OPS Administrator, Richard Mijon, would schedule the appointment with the physician chosen; and that Mr. Pierre was to not return to work, but remain at home with pay pending the determination of the examination. The letter was addressed to Mr. Pierre at 2450 SW 7th Street, Fort Lauderdale, Florida 33312. An inference is drawn and a finding of fact is made that a perception existed that Mr. Pierre may have been experiencing psychological problems. Additionally, on September 27, 2005, Mr. Mijon met with Mr. Pierre and two of Mr. Pierre’s line supervisors in Mr. Mijon’s office. The line supervisors requested that a Creole-speaking individual also attend to assist Mr. Pierre in communicating only. Mr. Mijon complied with the request and obtained the services of one of his officers, Marc Elias, who was born in Haiti and who spoke Creole, for interpretation purposes only. The aforementioned letter dated September 27, 2005, was hand-delivered to Mr. Pierre at this meeting, and Mr. Mijon reviewed the contents of the letter with Mr. Pierre, who signed the letter and dated his signature (September 27, 2005). The list of physicians attached to the letter included physicians from the counties of Dade [sic], Broward, and Palm Beach. Mr. Pierre testified at hearing that he did not know any of the doctors on the list and, therefore, Mr. Elias circled three of the doctors and marked the order of preference (first, second, and third) for him. Mr. Pierre’s testimony is found to be credible, but also an inference is drawn and a finding is made that the choices were made after consulting with Mr. Pierre. Additionally, on the list, Mr. Pierre provided his contact telephone numbers (home and cell). Mr. Mijon reviewed with Mr. Pierre the choice of doctors, with preferences, and his (Mr. Pierre’s) telephone numbers. Also, Mr. Pierre’s address on the letter dated September 27, 2005, was taken from the School Board’s records. At the meeting, Mr. Pierre did not indicate that his mailing address was incorrect. At the conclusion of the meeting, Mr. Pierre requested that a Creole-speaking doctor perform the Fit-For-Duty examination. Mr. Mijon considered Mr. Pierre’s request reasonable, knew that none of the physicians on list spoke Creole, and indicated to Mr. Pierre that he would hold the list of physicians in abeyance and locate a Creole-speaking doctor through the EAP. On or about October 3, 2005, Mr. Mijon received a list of Creole-speaking psychiatrists and/or psychologists from the EAP. On that same day, Mr. Mijon again obtained the services of Mr. Elias and directed Mr. Elias to contact Mr. Pierre by telephone. Mr. Elias complied and contacted Mr. Pierre by telephone, activating the speakerphone. Mr. Elias participation in the entire telephone conversation was for translation purposes only. Mr. Mijon informed Mr. Pierre that a list of Creole-speaking doctors had been obtained and that Mr. Pierre needed to come to Mr. Mijon’s office on October 5, 2005, to do as he had done previously—choose three doctors, identifying his preferences (one through three), and sign and date the document. Mr. Pierre indicated, during the telephone conversation, that he would not come into Mr. Mijon’s office to do anything, indicating, among other things, that he (Mr. Pierre) was being persecuted. Mr. Mijon informed Mr. Pierre that, if he did not come into his (Mr. Mijon’s) office on October 5, 2005, that he (Mr. Pierre) would be considered to have waived his right to choose from the second list of doctors, and that he (Mr. Mijon) would have no choice but to use the original list chosen by Mr. Pierre, which contained no Creole-speaking doctors, contact Mr. Pierre’s first choice, and schedule an appointment with the first doctor from the original list. On October 5, 2005, Mr. Pierre failed to appear at Mr. Mijon’s office. Mr. Mijon proceeded to schedule an appointment with the doctor from the original list, Laura Hohnecker, Ph.D., who was indicated as Mr. Pierre’s first choice. The appointment was set for October 12, 2005, at Dr. Hohnecker’s office, 1:00 p.m. to 4:30 p.m. On October 6, 2005, Mr. Mijon contacted Mr. Pierre by telephone and again obtained the services of Mr. Elias for translation purposes only. Again, the telephone was placed on speakerphone. Mr. Mijon advised Mr. Pierre that an appointment had been scheduled with Dr. Hohnecker, Mr. Pierre’s first choice from the original list, for the Fit-For-Duty examination, and provided Mr. Pierre with the date, time, address, and telephone number of Dr. Hohnecker. Further, Mr. Mijon informed Mr. Pierre that the appointment was mandatory and that, if he (Mr. Pierre) failed to attend the appointment, disciplinary action may result. In addition to the telephone conversation, Mr. Mijon sent a letter, dated October 6, 2005, by certified and regular U.S. mail to Mr. Pierre, containing the same information that was discussed during the telephone conversation. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. The certified letter was returned but not for being unclaimed. Mr. Pierre failed to appear at Dr. Hohnecker’s office on October 12, 2005, for his appointment for a Fit-For-Duty examination. Due to Mr. Pierre’s failure to appear for his appointment, by letter dated October 14, 2005, Mr. Melita directed Mr. Pierre to appear at his (Mr. Melita’s) office on Tuesday, October 25, 2005, at 9:00 a.m. to meet with Mr. Mijon for a pre-disciplinary meeting, indicating that the purpose of the pre-disciplinary meeting was Mr. Pierre’s insubordination/noncompliance with School Board Policy 4004. The letter further indicated, among other things, that Mr. Pierre had failed to attend the mandatory appointment, as directed, with Dr. Hohnecker for his Fit-For-Duty examination. Moreover, the letter advised Mr. Pierre that his failure to attend the meeting on October 25, 2005, would result in his (Mr. Pierre’s) name being forwarded to the School Board for “termination” of employment. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005, and was sent to Mr. Pierre by certified and regular U.S. mail. The certified letter was returned but not for being unclaimed. Subsequently, by letter dated November 7, 2005, Mr. Melita informed Mr. Pierre that, due to a hurricane, the meeting scheduled for October 25, 2005 was re-scheduled for Monday, November 14, 2005, at 9:00 a.m., restating the purpose for the meeting and the same information contained in the letter dated October 14, 2005. The letter was sent to Mr. Pierre by certified and regular U.S. mail, at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. Mr. Pierre, accompanied by his counsel, attended the meeting on November 14, 2005. Mr. Elias was also present at the meeting for interpretation purposes only. At the meeting, Mr. Pierre denied that he had received a telephone call on October 3, 2005, regarding Mr. Mijon obtaining a list of Creole- speaking doctors for the Fit-For-Duty evaluation and the consequences for him (Mr. Pierre) not attending the meeting scheduled for October 5, 2005, with Mr. Mijon. At hearing, Mr. Pierre also testified that he did not receive the telephone call on October 3, 2005, regarding the meeting on October 5, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. The undersigned makes a finding of fact that Mr. Pierre received the telephone call on October 3, 2005, regarding the meeting on October 25, 2005, and the consequences for his failure to attend. Also, at hearing, Mr. Pierre testified that he did not speak on the telephone with Mr. Mijon and Mr. Elias on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. A finding of fact is made that Mr. Pierre received the aforementioned telephone call on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. At the meeting on November 14, 2005, Mr. Melita determined that Mr. Pierre had presented no justifiable explanation for his (Mr. Pierre’s) failure to attend the appointment with Dr. Hohnecker on October 12, 2005, for the Fit- For-Duty examination. Mr. Melita recommended termination of Mr. Pierre’s employment with the School Board due to insubordination and non-compliance with School Board Policy 4004. By letter dated November 30, 2005, sent by certified and regular U.S. mail, Mr. Melita notified Mr. Pierre, among other things, of the recommendation, the basis for the recommendation, and the date (December 13, 2005) that the recommendation would be submitted to the School Board for approval. Mr. Pierre testified that he did not receive the letter dated November 30, 2005. Regarding Mr. Pierre’s address on the letters from the School Board sent by certified and regular U.S. mail, at hearing, Mr. Pierre testified that, in 2004, he had moved from the address reflected on the letters; that, after he was sent home in September 2005, he was receiving his paychecks from the School Board in the mail at his new 2004 address; and that, around December 2005, he moved to Sarasota, Florida. The evidence demonstrates that the certified letters were returned but fails to demonstrate whether the letters sent by regular U.S. mail were returned or not returned. Furthermore, the evidence demonstrates and Mr. Pierre admits that he and his counsel attended the re-scheduled pre-disciplinary meeting on November 14, 2005, regarding Mr. Pierre’s insubordination/noncompliance with School Board policy 4004, as to Mr. Pierre’s failure to attend the mandatory appointment with Dr. Hohnecker for his Fit-For-Duty examination. Mr. Pierre testified that he and his counsel became aware of the meeting on November 14, 2005, as a result of his counsel contacting Mr. Melita, attempting to discover what issue the School Board had with Mr. Pierre. The undersigned finds Mr. Pierre’s testimony credible regarding his addresses for 2004 and 2005. However, the undersigned further finds that the failure of Mr. Pierre to advise Mr. Mijon of his (Mr. Pierre’s) correct address at the meeting on September 27, 2005 was unreasonable. Mr. Pierre has not been employed since his termination from the School Board. Mr. Pierre has been consistently seeking employment since his termination from the School Board. At the time of the hearing, Mr. Pierre was suffering from hypertension and depression for which is taking medication for both. The evidence fails to demonstrate that Mr. Pierre was suffering from these illnesses or taking medication for them at the time that he was employed with the School Board. The evidence fails to demonstrate that similarly situated employees of the School Board were treated differently or more favorably.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Antoine Daniel Pierre against the Broward County School Board. DONE AND ENTERED this 31st day of July, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of July, 2008.
