The Issue The issues remaining to be resolved in this proceeding concern whether the above-named Petitioner is a "small business party" as described in Section 57.111(3)(d)1.a. b. and c., Florida Statutes (2007); whether the action of the above-named Agency in the underlying case was substantially justified in law and fact and whether an award of attorney's fees and costs would be unjust.
Findings Of Fact In the instant case the Respondent Agency (Department) does not dispute the amount of attorney's fees and costs sought in this proceeding and does not contest that the Petitioner is a prevailing party. Moreover, the Department admits that it was a real party in interest in the underlying proceeding involving the Administrative Complaint and was not merely a nominal party. The parties also waived an evidentiary hearing in this attorney fee proceeding. The parties, rather, submitted memoranda and affidavits in support of their respective positions. The present Petition for Attorney's Fees and Costs is based upon the above-referenced Administrative Complaint action brought against Wittmer and JR. Wittmer's Remodeling, Inc., by the Department, which came before the Division of Administrative Hearings by a request for formal hearing filed by Wittmer. Prior to filing that Administrative Complaint the Department performed an investigation related to the Complaint which had been filed by Kenneth Hatin of Palm Coast, Florida, against Wittmer. The Complaint by Hatin alleged that on August 10, 2005, he and Wittmer had entered into a contract for the building of an addition to the complainant's home in Palm Coast, Florida. Hatin had alleged and testified at hearing that Wittmer was unlicensed to perform the work under the contract and had been paid in excess of $30,000.00 for the project. Hatin maintained that Wittmer had abandoned the job before completion and that he had to hire another person or entity to complete the work, at further expense. The Department considered the results of its investigation, in the form of an investigative report, and considered the investigative file it had developed concerning Hatin's complaint. This included the original contract on JR. Wittmer's Remodeling, Inc.'s, stationary, signed by Wittmer, as well as copies of original checks amounting to approximately $30,000.00 written to Wittmer and/or his company or business. It also considered a copy of the local licensing records concerning Wittmer, revealing an expired occupational license, as well as records of the Department showing that Wittmer was unlicensed as any sort of contractor in the State of Florida. The Department also considered various invoices and receipts regarding the work contracted by complainant Hatin with another person or entity, to finish the job purportedly abandoned by Wittmer. During the investigation, the complainant and the complainant's fiancée were interviewed and made no mention of any familial relationship or friendship relationship between Wittmer and the complainant and his family members at the time of the investigation. Wittmer himself was interviewed by the investigator and did not mention any familial or personal relationship he had with the complainant or the complainant's family. The familial or friendship relationship between Wittmer and the complainant and the complainant's family only arose through the evidence adduced at the hearing. That evidence became a significant portion of the reason for the Findings of Fact and Conclusions which resulted in the Complaint against Wittmer being ultimately dismissed. JR. Wittmer's Remodeling, Inc., was dissolved by the State of Florida, Department of State, Division of Corporations on September 16, 2005, for failure to file required annual reports or Uniform Business Report. This fact was confirmed by Wittmer's affidavit submitted on January 18, 2008, in this proceeding, attesting that his corporation was dissolved and that it ceased business due to "financial hardship of the business." As a result of the hearing it was determined in the Recommended Order (with Findings of Fact adopted in the Final Order) that Wittmer performed work on the subject construction project without making any profit. It was performed, in essence, as a cooperative project between family and friends of Wittmer, in the sense that Wittmer's fiancée was related to the complaining witness's family and/or they were close friends. The circumstances established by preponderant evidence did not show that Wittmer was actually performing contracting, as defined in the above-referenced statutory authority underlying the charges in the Administrative Complaint. It was also determined, based upon the preponderant evidence at that hearing, that Wittmer made no profit on the project after paying all the subcontractors. The Department, in essence, adopted the Recommended Order of the Administrative Law Judge (with non-dispositive modifications of several Conclusions of Law) and entered a Final Order dismissing the charges in the Administrative Complaint. The subject Petition for Attorney's Fees and Costs was thereafter filed and this case ensued. The Department proceeded against Wittmer by naming as Respondents, in the underlying, case JR Wittmer's Remodeling, Inc., which corporation had actually already been dissolved at the time of the filing of the Administrative Complaint. It also named in that Complaint, and proceeded against, Willis Wittmer, Jr., personally. The Petitioners herein have established that Wittmer never had more than 25 full-time employees or a net worth in excess of two million dollars, whether functioning as JR Wittmer, Jr., an individual or as JR Wittmer's Remodeling, Inc. The Petitioner has also established that the construction contract at issue in the underlying case was entered into by the Petitioner herein under the name "JR Wittmer's Remodeling" and not "JR Wittmer's Remodeling, Inc." Moreover, that contact was not signed by Mr. Wittmer as president of JR Wittmer Remodeling, Inc. Aside from the fact that the Department filed the original Administrative Complaint against JR Wittmer Remodeling, Inc., it also named JR Wittmer individually as a Respondent in that Administrative Complaint, so he had defend against the action personally, regardless of the question of whether the corporation was in legal existence at the time of the filing of the Administrative Complaint. The evidence, as referenced above, shows that he met the requirements of having less than 25 full- time employees and a net worth of less than two million dollars. Thus, the totality of the evidence shows that Mr. Wittmer has standing, as the sole proprietor of an unincorporated business, to pursue the subject attorney's fee claim as a sole proprietor, even if not as a corporation or the president of the originally named, but now dissolved corporation. The Petitioner contends that the Department should have recognized the lack of a factual basis for the Administrative Complaint and, before finding probable cause, should have been able to determine that the construction arrangement between Wittmer and Hatin did not meet the legal definition of contracting or contracting services based upon the familial/friendship relationship of the protagonists. The Department, however, conducted a reasonable investigation and has been shown to have had a reasonable basis to determine, before hearing, that contracting and contracting services had been, in a legal sense, performed by Wittmer, based upon the results of its investigation (interviews, etc.). This is especially the case since Wittmer himself, when interviewed, had not revealed such exculpatory facts to the Department.
The Issue Whether Florida Power & Light Company (hereinafter referred to as "FPL") properly refused the request of Globe International Realty & Mortgage, Inc. (hereinafter referred to as "Globe") to supply electric service to the premises located at 808 Northeast Third Avenue, Fort Lauderdale, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Kenneth V. Hemmerle, Sr., is a real estate developer. Matthew Renda is a real estate and mortgage broker. Hemmerle and Renda have known each other since about 1986. At the suggestion of Hemmerle, in February of 1993, Renda, along with Hemmerle, formed Globe. At the time, Hemmerle was involved in a development project on the west coast of Florida and he wanted Renda, through Globe, to handle "the selling and so forth for the project." Globe was incorporated under the laws of Florida. The articles of incorporation filed with the Department of State, Division of Corporations (hereinafter referred to as the "Division of Corporations") reflected that: Renda was the president of the corporation; Hemmerle was its secretary; Renda and Hemmerle were the incorporators of the corporation, owning 250 shares of stock each; they also comprised the corporation's board of directors; and the corporation's place of business, as well as its principal office, were located at 808 Northeast Third Avenue in Fort Lauderdale, Florida (hereinafter referred to as the "808 Building"). Globe is now, and has been since its incorporation, an active Florida corporation. Annual reports were filed on behalf of Globe with the Division of Corporations in both 1994 (on April 19th of that year) and 1995 (on March 23rd of that year). The 1994 annual report reflected that Renda and Hemmerle remained the officers and directors of the corporation. The 1995 annual report reflected that Renda was still an officer and director of the corporation, but that Hemmerle had "resigned 9-2-93." Both the 1994 and 1995 annual reports reflected that the 808 Building remained the corporation's place of business and its corporate address. The 808 Building is a concrete block building with a stucco finish housing eight separate offices. The entire building is served by one electric meter. At all times material to the instant case, Southern Atlantic Construction Corporation of Florida (hereinafter referred to as "Southern") owned the 808 Building. Southern was incorporated under the laws of Florida in June of 1973, and administratively dissolved on October 9, 1992. Hemmerle owns a majority of the shares of the corporation's stock. The last annual report that Southern filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. From 1975 until September 6, 1994, FPL provided electric service to the 808 Building. Charges for such service were billed to an account (hereinafter referred to as the "808 account") that had been established by, and was in the name of, Hemmerle Development Corporation (hereinafter referred to as "HDC"). HDC was incorporated under the laws of Florida in 1975, and administratively dissolved on October 9, 1992. At the time of HDC's incorporation, Hemmerle owned 250 of the 500 shares of stock issued by the corporation. The last annual report that HDC filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. Following the administrative dissolution of the corporation, Hemmerle continued to transact business with FPL in the corporation's name, notwithstanding that he was aware that the corporation had been administratively dissolved. At no time has Renda owned any shares of HDC's stock or served on its board of directors. He and Hemmerle have served together as officers and directors of only two corporations: Globe and Hemmerle's Helpers, Inc. The latter was incorporated under the laws of Florida as a nonprofit corporation in March of 1992, and was administratively dissolved on August 13, 1993. Its articles of incorporation reflected that its place of operation, as well as its principal office, were located in the 808 Building. Pursuant to arrangements Renda and Hemmerle had made (which were not reduced to writing), Globe occupied office space in the 808 Building from March of 1993, through September 6, 1994 (hereinafter referred to as the "rental period"). Renda and Hemmerle had initially agreed that the rent Globe would pay for leasing the space would come from any profits Globe made as a result of its participation in Hemmerle's Florida west coast development project. Renda and Hemmerle subsequently decided, however, that Globe would instead pay a monthly rental fee of $300 for each office it occupied in the building. 1/ Globe (which occupied only one office in the building during the rental period) did not pay in full the monies it owed under this rental agreement. The office Globe occupied in the 808 Building was the first office to the right upon entering the building. It was across the lobby from the office from which Hemmerle conducted business on behalf of his various enterprises. Globe voluntarily and knowingly accepted, used and benefited from the electric service FPL provided to its office and the common areas in the building during the rental period. Under the agreement Renda and Hemmerle had reached, Globe was not responsible for making any payments (in addition to the $300 monthly rental fee) for such service. On July 26, 1994, the 808 account was in a collectible status and an FPL field collector was dispatched to the service address. There, he encountered Hemmerle, who gave him a check made out to FPL in the amount of $2,216.37. Hemmerle had noted the following on the back of the check: "Payment made under protest due to now [sic] owning [sic] of such billing amount to prevent discontinuance of power." The check was drawn on a Sunniland Bank checking account that was in the name of Florida Kenmar, Inc., (hereinafter referred to as "Kenmar"), a Florida corporation that had been incorporated in May of 1984, 2/ and administratively dissolved on November 9, 1990. (The last annual report that Kenmar filed with the Division of Corporations, which was filed on June 10, 1991, reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; and the corporation's principal office was located in the 808 Building.) Hemmerle told the field collector, upon handing him the check, that there were no funds in the Kenmar checking account. Nonetheless, the field collector accepted the check. FPL deposited the check in its account at Barnett Bank of South Florida. The check was subsequently returned due to "insufficient funds." On the same day that he was visited by the FPL field collector, Hemmerle telephoned Sandra Lowery, an FPL customer service lead representative for recovery, complaining about, among other things, a debit that he claimed had been improperly charged to the 808 account. As a result of her conversation with Hemmerle, Lowery authorized the removal of the debit and all late payment charges associated with the debit from the 808 account. Following the July 26, 1994, removal of the debit and associated late payment charges, the balance due on the account was $1,953.91, an amount that Hemmerle still disputed. In an effort to demonstrate that a lesser amount was owed, Hemmerle sent Lowery copies of cancelled checks that, he claimed, had been remitted to FPL as payment for electric service billed to the 808 account. Some of these checks, however, had been used to pay for charges billed to other accounts that Hemmerle (or corporations with which he was associated) had with FPL. As of August 29, 1994, the 808 account had a balance due of $2,387.47. These unpaid charges were for service provided between March of 1993 and August 10, 1994. On August 29, 1994, Hemmerle showed Renda a notice that he had received from FPL advising that electric service to the 808 Building would be terminated if the balance owing on the 808 account was not paid within the time frame specified in the notice. Hemmerle suggested to Renda that, in light of FPL's announced intention to close the 808 account and terminate service, Renda should either apply for electric service to the 808 Building in Globe's name or relocate to another office building. Renda decided to initially pursue the former option. Later that same day, Renda telephoned FPL to request that an account for electric service to the 808 Building be opened in Globe's name. Gigi Marshall was the FPL representative to whom he spoke. She obtained from Renda the information FPL requires from an applicant for electric service. During his telephone conversation with Marshall, Renda mentioned, among other things, that Globe had been a tenant at the 808 Building since the previous year and that it was his understanding that FPL was going to discontinue electric service to the building because of the current customer's failure to timely pay its bills. Renda claimed that Globe was not in any way responsible for payment of these past-due bills. From an examination of FPL's computerized records (to which she had access from her work station), Marshall confirmed, while still on the telephone with Renda, that the 808 account was in arrears and that FPL had sent a disconnect notice to the current customer at the service address. Marshall believed that, under such circumstances, it would be imprudent to approve Globe's application for electric service without further investigation. She therefore ended her conversation with Renda by telling him that she would conduct such an investigation and then get back with him. After speaking with Renda, Marshall went to her supervisor, Carol Sue Ryan, for guidance and direction. Like Marshall, Ryan questioned whether Globe's application for service should be approved. She suggested that Marshall telephone Renda and advise him that FPL needed additional time to complete the investigation related to Globe's application. Some time after 12:30 p.m. on that same day (August 29, 1994), Marshall followed Ryan's suggestion and telephoned Renda. Ryan was on the line when Marshall spoke with Renda and she participated in the conversation. Among the things Ryan told Renda was that a meter reader would be dispatched to the 808 Building the following day to read the meter so that the information gleaned from such a reading would be available in the event that Globe's application for service was approved. At no time did either Marshall or Ryan indicate to Renda that Globe's application was, or would be, approved. Ryan referred Globe's application to Larry Johnson of FPL's Collection Department, who, in turn, brought the matter to the attention of Thomas Eichas, an FPL fraud investigator. After completing his investigation of the matter, which included an examination of the Broward County property tax rolls (which revealed that Southern owned the 808 Building), as well a search of the records relating to Globe, HDC and Southern maintained by the Division of Corporations, Eichas determined that Globe's application for service should be denied on the basis of the "prior indebtedness rule." Eichas informed Johnson of his decision and instructed him to act accordingly. Electric service to the 808 Building was terminated on September 6, 1994. As of that date, the 808 account had a past-due balance that was still in excess of $2,000.00. Although he conducted his business activities primarily from his home following the termination of electric service to the 808 Building, Hemmerle continued to have access to the building until March of 1995 (as did Renda). 3/ During this period, Hemmerle still had office equipment in the building and he went there on almost a daily basis to see if any mail had been delivered for him. It was his intention to again actively conduct business from his office in the building if electric service to the building was restored. Hemmerle (and the corporations on whose behalf he acted) therefore would have benefited had there been such a restoration of service. After discovering that electric service to the 808 Building had been terminated, Renda telephoned FPL to inquire about the application for service he had made on behalf of Globe. He was advised that, unless FPL was paid the more than $2,000.00 it was owed for electric service previously supplied to the building, service to the building would not be restored in Globe's name. Thereafter, Renda, on behalf of Globe, telephoned the PSC and complained about FPL's refusal to approve Globe's application for service. FPL responded to the complaint in writing. In its response, it explained why it had refused to approve the application. On or about November 15, 1994, the Chief of PSC's Bureau of Complaint Resolution sent Renda a letter which read as follows: The staff has completed its review of your complaint concerning Florida Power & Light's (FPL) refusal to establish service in the name of Globe Realty, Inc. at the above- referenced location. Our review indicates that FPL appears to have complied with all applicable Commission Rules in refusing to establish service. Our review of the customer billing history indicates that the past-due balance is for service at this location and not attributable to the judgment against Mr. Hemmerle for service at another location. The interlocking directorships of Globe International Realty & Mortgage, Inc. and Hemmerle Development, Inc. suggest that the request to establish service in the name of Globe Realty is an artifice to avoid payment of the outstanding balance and not a result of any change in the use or occupancy of the building. Thus, FPL's refusal to establish service is in compliance with Rule 25-6.105(8)(a), Florida Administrative Code. Please note that this determination is subject to further review by the Florida Public Service Commission. You have the right to request an informal conference pursuant to Rule 25-22.032(4), Florida Administrative Code. Should that conference fail to resolve the matter, the staff will make a recommenda- tion to the Commissioners for decision. If you are dissatisfied with the Commission decision, you may request a formal Administrative hearing pursuant to Section 120.57(1), Florida Statutes. After receiving this letter, Renda, on behalf of Globe, requested an informal conference. The informal conference was held on November 30, 1994. At the informal conference, the parties explained their respective positions on the matter in dispute. No resolution, however, was reached. Adopting the recommendation of its staff, the PSC, in an order issued January 31, 1995, preliminarily held that there was no merit to Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. Thereafter, Renda, on behalf of Globe, requested a formal Section 120.57 hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the PSC enter a final order dismissing Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1995. STUART M. LERNER 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 4th day of December, 1995.
Findings Of Fact On or about August 10, 1979, HRS caused a legal advertisement to be published concerning its Purchase Order No. 52579, requesting bids for window film installation pursuant to HRS Bid No. 30-497WR. The Invitation to Bid provided, in part, that: As the best interests of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. When it is determined there is competition to the lowest responsive bidder, then other bids may not be evaluated. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. Among the special conditions of the Invitation to Bid was the following: The successful bidder will furnish and install window insulation film on all glass exposures of buildings designated as one through eight with the exception of these [sic] windows now having film installed. These buildings are commonly known as the Winewood Complex which is located at One Winewood Blvd., Tallahassee, Florida 32301. Subleased or other occupied space will be an addition to the basic glass square footage of buildings five, six, seven and eight now occupied by the Department of Corrections, Winewood Office Park Lmtd. and the Parole and Probation Commission. Prospective bidders will be provided these applicable locations by the project manager. The bid will contain a diagram and listing of these square footages. The computations of total square footages of applicable glass areas will be separated by buildings. This is necessary so that after the installation of the film on each building is completed and accepted by the project manager, an invoice can be submitted for payment. [Emphasis added]. In addition, tee following clause was also contained in the Special Conditions of the Invitation to Bid: All work performed by the Contractor in completing the subject project shall be guaranteed by the Contractor against all defect resulting from the use of materials, equipment and workmanship for a period of five years from the date of final completion of the subject project. If, within any guarantee period, repairs or changes are required in connection with the guarantee work, which in the opinion of the Owner is rendered necessary as a result of the use of materials, equipment or workmanship which are defective or inferior or not in accordance with the terms of the Contract, the Contractor shall, promptly upon receipt of notice from the Owner and without expense to the Owner, proceed to: Place in satisfactory condition in very [sic] particular all of such guaranteed work, correct all defects therein; and make good all damages to the structure or contents thereof, which in the opinion of the Owner, is the result of the use of materials, equipment, or workmanship which are inferior, defective, or not in accordance with the terms of the Contract; and made [sic] good any work or materials or the equipment and contects [sic] of structures or site disturbed in fulfilling any such guarantee. [Emphasis added]. The Special Conditions also provided that: No interpretation of the meaning of the Drawings, specifications, or other Bidding Documents, no correction of any apparent ambitquity [sic], inconsistency or error therein, will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Project Manager. All such interpretations and supplemental instruction will be in the form of written addenda to the Bidding Documents. Only the interpretation or correction so given by the Project Manager in writing, shall be binding and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret the Bidding Documents. Finally, the Invitation to Bid also provided for modification of bids if received in writing prior to bid opening. HRS distributed more than 25 bid invitations pursuant to the aforementioned bid, and in response thereto received four bids, one of which was a "no bid". Of the three remaining bidders, Solar-X of Tallahassee submitted a total bid of $34,624.88, based upon a measurement of 29,096 square feet at a price of $1.19 per square foot; Florida Solar Power, Inc. submitted a total bid of $30,079.14, based upon 30,693 square feet at $.98 per square foot; and, finally, Petitioner submitted a total bid of $43,555.10 based upon a calculation of 37,874 square feet at $1.15 per square foot. The bids of Solar-X of Tallahassee and Florida Solar Power, Inc. were determined to be unresponsive to the Invitation to Bid for reasons not here pertinent. Although Petitioner's bid contained a total square footage on which it proposed to install window film, the bid did not break down the area of glass on a per-building basis as required by the conditions of the Invitation to Bid. In addition, the conditions of the Invitation to Bid required that building space occupied by sublessors be separately computed in bid responses in order to attempt to pass on to those sublessors their pro-rata share of the cost. Petitioner did not separate this space in its bid as required. Petitioner also failed to furnish with its bid a diagram of exposed glass area in each building as required in the special conditions. Finally, Petitioner's bid response contained the following warranty provision: . . .3M Company and the [Petitioner] warrants [sic] "SCOTCHING" Brand Solar Control films against peeling, cracking, crazing, or loosening for a period of five (5) years after installation in the event the product is found to be defective under this warranty. [Petitioner] will replace such quantity of the film proved to be defective with the [Petitioner] additionally providing the reapplication labor free of charge for the first two (2) years of the warranty. The customer shall pay for any reapplication labor charges during the last three (3) years of the warranty. . .[Emphasis added]. At final hearing, a representative of Petitioner testified that this warranty was the manufacturer's warranty, and that Petitioner, as the seller of the product, intended that full warranty protection in accordance with the conditions of the Invitation to Bid be part of Petitioner's bid. However, nothing to this affect appears in Petitioner's bid, nor did Petitioner attempt to modify its bid in writing before bid opening to make HRS aware of its intentions in this regard. Although bid opening was initially scheduled for August 24, 1979, the opening date was extended to September 4, 1979, by addendum to the Invitation to Bid. After opening, bids ware reviewed by the staff of the Director of the Office of General Service in HRS for technical compliance with the Invitation to Bid. As a result of this review, it was determined that Petitioner's bid was the only bid submitted which complied with all provisions of the bid specifications, and the staff, therefore, recommended award of the contract to Petitioner. At this point the question of the award of the contract came to the attention of the Purchasing Director of HRS's Central General Services, whose office is responsible for evaluation of bids for compliance with the terms and conditions of an Invitation to Bid, state purchasing law and administrative rules relating to state commodity purchases. During the course of this review, it was determined that Petitioner's bid did not comply with the conditions of the Invitation to Bid in that it failed to break down its bid on a per-building basis and, additionally, improperly qualified the five-year warranty requirement contained in the Invitation to Bid and its conditions. At the Federal hearing in this cause the Purchasing Director for Central General Services also testified that he had received oral communications from other vendors, some of whom submitted bids and some who did not, to the effect that the technical specifications of the Invitation to Bid were tailored to the products sold by Petitioner to such an extent as to effectively close the bidding process to competition. None of these vendors protested the content of the specifications as required in the Invitation to Bid, nor was any direct testimony adduced at final hearing in this cause from these vendors. Although the Division of Purchasing of the Department of General Services also concluded that the bid specifications were too restrictive, there is insufficient evidence in the record in this proceeding upon which to base a conclusion that the specifications contained in the Invitation to Bid were either tailored to Petitioner's product, or were so restrictive as to limit competitive bidding. Indeed, one of the actual bidders, Solar-X of Tallahassee, submitted a bid which complied with the technical specifications, but was rejected because it included an unacceptable contingency clause for late delivery. After extensive in-house review by various HRS employees, a letter dated October 4, 1979, was forwarded to all vendors advising that HRS, after ". . .an extensive analysis of the bid responses. . ." had decided to reject all bids and issue a second call for bids. This letter also indicated that ". . .areas of concern which were expressed relative to the initial invitation will be addressed in the second call." The letter did not attempt to further identify the "areas of concern." The facts of record in this proceeding clearly establish that Petitioner's bid was not responsive to the Invitation to Bid. Petitioner did not include in its bid a diagram of each building on which window film was to be installed, nor did the bid indicate the number of square feet contained in each building. The two vendors whose bids were rejected apparently had no difficulty complying with this requirement. As a result, HRS was precluded from comparing the per-building cost of the competing bids, and, had the contract been awarded to Petitioner, HRS could not have determined the proper amount of periodic progress segments without performing independent measurement. Most importantly, however, Petitioner improperly qualified the five- year warranty provision contained in the Special Conditions. Petitioner's bid, on its face, limited its responsibility to replacement of defective window film during the five-year warranty period, and required that HRS be responsible for payment of labor charges for reinstallation during the last three years of the warranty period. This warranty qualification was clearly contrary to the requirement that any product replacement or reinstallation be without expense to HRS for a period of five years from the date of final completion of the project. There was extensive testimony at final hearing concerning allegations by Petitioner of improper conduct on the part of the HRS Purchasing Director for Central General Services which allegedly resulted in the decision to reject all bids and submit a second call for bids. Testimony on this issue involved Petitioner's assertion that the HRS employee's relationship by marriage to one of the unsuccessful bidders led to his conclusion that the technical specifications were so narrowly drawn as to preclude a consideration of his relative's product, and that the specifications should be redrafted so as to allow consideration of products other than Petitioner's. In light of the fact that Petitioner's bid was not responsive to the Invitation to Bid, in that it improperly qualified the warranty required, and did not contain square footage computations on a per-building basis, it is unnecessary to reach the question of the propriety of any conduct on the part of the HRS employee. The propriety of the rejection of Petitioner's bid was determined by Petitioner's failure to comply with the Special Conditions of the Invitation to Bid, and could not have been affected by the alleged misconduct on the part of an employee of HRS. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such proposed findings of fact have not been adopted in this Recommended Order, they have been specifically rejected as being irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue At issue in this case is the question of whether the Respondent discriminated against the Petitioner by discharging the Petitioner because of his race and/or a handicap?
Findings Of Fact The Respondent, General Parcel Service of Florida, Inc., is in the business of shipping, receiving and delivering goods, primarily small packages. The Respondent's headquarters are located in Jacksonville, Florida, and it has a branch operation in Tallahassee, Florida. The Petitioner, Robert L. Johnson, was hired by the Respondent as a driver in late February or early March, 1989. Mr. Johnson worked out of the Tallahassee branch operation. Mr. Johnson was employed by the Respondent until October 24, 1989. Mr. Johnson is a black male. Between February, 1989, and June, 1989, Mr. Johnson's work was satisfactory. In July, 1989, Mr. Johnson injured his back. As a result of this back injury, Mr. Johnson was absent from work until approximately July 10, 1989. Mr. Johnson worked for approximately three weeks after returning to work in July, 1989, but was absent because of his back injury from the end of July, 1989, until approximately September 7, 1989. When Mr. Johnson returned to work in July and in September, 1989, his physician had ordered that he not lift anything which weighed more than 25 pounds. The weight limitation was the only limitation placed by Mr. Johnson's physician on the duties Mr. Johnson could perform. There was no medical restriction placed on Mr. Johnson's duty to report to work or to report on time. Beginning in June, 1989, the Tallahassee terminal manager, and Mr. Johnson's supervisor, was Harry LaNoue. The first day after Mr. Johnson returned to work in July, 1989, Mr. LaNoue had Mr. Johnson answering the telephone and doing paperwork. The second day Mr. LaNoue had Mr. Johnson washing trucks, cleaning around the premises and picking up trucks. On the third day after returning to work, in addition to the duties Mr. Johnson began performing on the second day, Mr. Johnson also began delivering packages. After Mr. Johnson's back injury, Mr. LaNoue personally selected the packages Mr. Johnson delivered. Mr. LaNoue attempted to insure that no package was given to Mr. Johnson which weighed more than 25 pounds. Mr. LaNoue also instructed Mr. Johnson that he was not to attempt to lift any package which weighed more than 25 pounds and that he should bring any packages which weighed more than 25 pounds back to the terminal. Mr. LaNoue also told Mr. Johnson that he was to keep all appointments with his physician and to return any packages which he could not deliver before any such appointment. Although Mr. Johnson testified that Mr. LaNoue tried to pressure him into performing duties which he believed he should not be performing because of his back injury, the weight of the evidence failed to support this testimony. Mr. Johnson gave no examples of such pressure which were contrary to his physician's instructions and he contradicted his testimony by admitting that Mr. LaNoue took the actions reflected in finding of fact 10. After Mr. Johnson injured his back, a couple of incidents involving Mr. Johnson's attendance occurred. Those incidents are described in Finding of Facts 13, 14 and 15. At some time after Mr. Johnson returned to work Mr. Johnson's wife telephoned and told Mr. LaNoue that Mr. Johnson would miss work because his back was sore. Mr. LaNoue asked to speak to Mr. Johnson but was told that Mr. Johnson was not available. Mr. LaNoue asked Ms. Johnson to have Mr. Johnson telephone him within an hour. Mr. Johnson did not call Mr. LaNoue. About an hour later Mr. LaNoue telephoned and spoke with Mr. Johnson. Mr. LaNoue told Mr. Johnson to go to see his physician. Mr. Johnson refused. Mr. LaNoue then told Mr. Johnson to report to work. Mr. Johnson refused. Mr. LaNoue told Mr. Johnson that it was important that he be dependable and report to work. On approximately September 14, 1989, Mr. LaNoue selected five or six packages he intended for Mr. Johnson to deliver. The packages weighed less than 25 pounds. When Mr. Johnson reported to work he told Mr. LaNoue that his back was sore. Mr. LaNoue instructed Mr. Johnson to go to see his physician. Mr. Johnson said no and walked out of the building. Mr. LaNoue telephoned the Respondent's personnel director, Ann Beeman, and reported the incident. Following this telephone call, Ms. Beeman received a telephone call from Mr. Johnson complaining about his back. She instructed Mr. Johnson to go to see his physician. Ms. Beeman informed Mr. LaNoue of her instructions to Mr. Johnson. Mr. Johnson went to see his physician, telephoned Mr. LaNoue and told him that he had been told to return to work. No additional restrictions on Mr. Johnson's work were imposed by the physician. After seeing his physician, Mr. Johnson returned to work. The packages that had been selected for him to deliver had already been delivered. Therefore Mr. Johnson performed other duties. In October, 1989, Mr. Johnson proposed to Mr. LaNoue and Scott Douglas Paul, driver supervisor/assistant terminal manager, that he be allowed to drive a route to Valdosta, Georgia. The route involved picking up packages from a drug company located in Valdosta. The company was an important client of the Respondent. Mr. LaNoue indicated that he would give the route to Mr. Johnson. Mr. LaNoue explained to Mr. Johnson how important the client was to the Respondent and told Mr. Johnson that he must be on time and be dependable. Mr. Johnson was also reminded that it was very important that Mr. Johnson comply with the Respondent's policy that drivers call at least one hour before their assigned departure time if they would not be able to report to work on time. The departure time for the Valdosta run assigned to Mr. Johnson was 5:00 p.m. On October 24, 1989, the second day after the Valdosta run had been assigned to Mr. Johnson, Mr. Johnson called the Respondent's offices between approximately 4:30 p.m. and 4:45 p.m. Mr. Johnson spoke to Mr. Paul. Mr. Johnson told Mr. Paul that he had "family problems" but refused to tell Mr. Paul specifically what the problem was. Mr. LaNoue was in the same room with Mr. Paul during his telephone conversation with Mr. Johnson. Based upon hand signals between Mr. LaNoue and Mr. Paul, Mr. Paul told Mr. Johnson that, if he did not report to work that day, he need not bother coming to work again. Between June, 1989, when Mr. LaNoue became the Tallahassee terminal manager, and November 1, 1989, eight individuals, including Mr. Johnson, were fired by Mr. LaNoue. Four of those individuals were black (including Mr. Johnson) and four were white. The individuals fired between June, 1989, and November 1, 1989, their race and the race of the individuals, if any, who were hired to replace them are as follows: Terminated Employee Race Race of Replacement William Rodriquez White No Replacement Tom Arnold White White Randy Wansley White Black Larry Hargrove Black White Elmer McCoy Black Black John Constant White Black Robert Johnson Black Black Lester Kelly Black White Mr. Johnson is a member of two classes protected under Chapter 760, Florida Statutes: race (black) and handicapped (back injury). Mr. Johnson was replaced by a member of one of the protected classes: race. The weight of the evidence failed to prove whether Mr. Johnson's replacement was a member of the other protected class Mr. Johnson is a member of: handicapped. The Respondent had a nondiscriminatory, rational and business-related basis for discharging Mr. Johnson: Mr. Johnson was not dependable. Mr. Johnson failed to prove that the Respondent's reason for discharging him was a pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Relations issue a Final Order finding that there is no cause to conclude that the Respondent discriminated against Robert L. Johnson and dismissing Mr. Johnson's Petition. DONE and ENTERED this 20th day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner did not file any proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 7. 5 6-7. 6 9. 7 9-10. 8 7 and 10. 9 12-13. 10 14. Not relevant to this proceeding. 14. The last sentence is hearsay and no finding of fact based on this hearsay has been made. 13 14. 14 14-15. 15 16. 16 16-17. 17 16. 18 18. 19 11. 20 Hereby accepted. 21-22 19-20 and hereby accepted. 23 Hereby accepted. COPIES FURNISHED: Robert L. Johnson 3250 West Tennessee Street Lot 209 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 =================================================================
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the Department issued an Advertisement for Bids (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (Department Project No. NV-30A, which is hereinafter referred to as the "Project") involving the expansion of the water treatment facility at the Martin Correctional Institution. The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a two-volume Specifications Manual (hereinafter referred to as the "Manual") that was made available for public inspection. Section B of the Manual's first volume contained the Instructions. Section B-2 2.A.(11) thereof provided that "Section 01420 as contained in the Technical Specifications must be submitted and the qualifications listed therein must be satisfactory to the Owner and the Engineer. " "Section 01420 as contained in the Technical Specifications" was a "Bidder's Qualification Form, Reverse Osmosis Treatment System Component" (hereinafter referred to as the "R.O. Form"), on which the bidder was to provide "R.O. [Reverse Osmosis] System Supplier" information. The R.O. Form repeated the directive that the bidder was to "[r]eturn [the] [c]ompleted [R.O.] Form [w]ith [its] proposal." Section B-14 of the Instructions addressed the subject of "preparation and submission of bids" and provided, in pertinent part, as follows: Each Bidder shall copy the proposal form on his own letterhead, indicate his bid prices thereon in proper spaces, for the Base Bid and for alternates on which he bids. . . . Proposals containing . . . . items not called for or irregularities of any kind may be rejected by the Owner. Section B-16 of the Instructions addressed the subject of "disqualification of bidders" and provided, in pertinent part, as follows: More than one bid from an individual, firm, partnership, corporation or association under the same or different names will not be considered. Reasonable grounds for believing that a Bidder is interested in more than one proposal for the same work will cause the rejection of all proposals in which such Bidders are believed to be interested. The subject of "contract award" was addressed in Section B-21 of the Instructions, which provided, in pertinent part, as follows: . . . The recommendation for contract award will be for the bidder qualified in accordance with Section B-2 and submitting the lowest bid provided his bid is responsible and it is in the best interest of the Owner to accept it. The qualified bidder submitting the lowest bid will be that bidder who has submitted the lowest price for the base bid, or the base bid plus additive alternates or less deductive alternates, taken in the numerical order listed in the bid documents in an amount to be determined by the Owner. The Order of the alternates may be accepted by the Owner in any sequence so long as such acceptance does not alter the designation of the low bidder. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. Section C of Volume I of the Manual contained the Proposal Form that all bidders were required to use to indicate their bid prices. The following statement appeared at the bottom of the second page of the Proposal Form: There is enclosed: A certified check, cashier's check, treasurer's check, bank draft or Bid Bond in the amount of not less than five (5) percent of the Base Bid payable to the Department of Corrections, as a guarantee. An executed Trench Excavation Safety Certification, Section F-13. An executed Experience Questionnaire and Contractor's Financial Statement and Public Entity Criminal Conviction Form, Section L. An executed Bidder's Qualifications Form (Reverse Osmosis), Technical Specification Section 01420. While one completed R.O. Form had to accompany each bid, there was no provision in any of the bid documents issued by the Department requiring a bidder to submit only one such completed form and no more. Petitioner, McMahan and R.J. Sullivan Corporation (hereinafter referred to as "Sullivan") were among the contractors that timely submitted bids in response to the Advertisement. McMahan's and Sullivan's bids were each accompanied by more than one completed R.O. Form. Petitioner, on the other hand, provided the Department with only one completed R.O. Form along with its bid. Of the bids submitted, McMahan's was the lowest, Sullivan's was the second lowest and Petitioner's was the third lowest. McMahan's base bid price was $857,000.00. Petitioner's was $905,000.00. McMahan's total price, including the nine additive alternates accepted by the Department, was $948,000.00. Petitioner's was $1,032,600.00, $84,600.00 more than McMahan's. By letter dated July 1, 1993, the Department advised McMahan of its intent "to award the contract [for Department Project No. NV-30A] to [McMahan] as the lowest responsive bidder." On July 9, 1993, Petitioner filed a formal written protest of the preliminary determination to award the contract to McMahan alleging that McMahan was not a responsive bidder inasmuch as McMahan "submitted Reverse Osmosis ("R.O.") Qualifications Forms for more tha[n] one vendor." According to Petitioner, "[t]his [was] not in conformance with the Bid Documents and gave [McMahan] an unfair advantage."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order finding Petitioner's bid protest to be without merit and awarding McMahan, as the lowest responsive and qualified bidder, the contract for Department Project No. NV-30A. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of September, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993.
The Issue As the parties have stipulated, the issue in this case is whether Respondent Florida Housing Finance Corporation (the “Corporation”) properly interpreted Rule 67-48.032(2), Florida Administrative Code, and the corresponding provisions on the same subject found in paragraph 2, at page 2, of the Corporation’s 2000 Qualified Allocation Plan (collectively, the "Instructions"), when it applied the Instructions to determine the substantial interests of Petitioners and Intervenors.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Corporation and Its Duty to Allocate Federal Income Tax Credits The Corporation is a public corporation that administers governmental programs relating to the financing and refinancing of housing and related facilities in Florida. It is governed by a nine-member board composed of eight persons whom the governor appoints plus the Secretary of the Department of Community Affairs, sitting ex-officio. Among other things, the Corporation is the state's designated "housing credit agency" as defined in the Internal Revenue Code. As such, the Corporation has the responsibility and authority to establish procedures necessary for the allocation and distribution of low-income housing federal tax credits, which are created under and governed almost entirely by federal law. These tax credits, which are designed to encourage the development of low-income housing for families, provide a dollar-for-dollar reduction of the holder’s federal income tax liability and can be taken each year, for up to ten years, that the low-income housing project for which the credits were awarded continues to satisfy Internal Revenue Code requirements. Housing tax credits are allotted annually to the states on a per capita basis and then awarded, through state-administered programs, to developers of rental housing for low-income and very low-income families. Once awarded, there is a market for these tax credits; consequently, a developer may sell them at a discount to obtain immediate cash for its project. As a populous state, Florida receives between $18 million and $18.5 million in federal tax credits each year. The Corporation allocates the state's share of tax credits to eligible recipients pursuant to a Qualified Allocation Plan ("QAP") that federal law requires be prepared. The QAP, which must be approved by the governor, is incorporated by reference in Rule 67-48.025, Florida Administrative Code. In accordance with the QAP, the Corporation employs various set-asides and special targeting goals that play a substantial part in determining which applicants will receive tax credits in a particular year. While targeting goals are "aspirational" in nature, set-asides are relatively inflexible. Thus, special targeting goals may be met if credits are available. In contrast, credits that were reserved (or "set- aside") for specific project types will be awarded to applicants whose developments fall within the defined set-aside. The set-asides that have spawned the instant dispute are the Geographic Set-Asides and the Non-Profit Set-Aside. The Geographic Set-Asides require that a pre-determined portion of the available tax credits be awarded to applicants in each of the following county groups: Large County, Medium County, and Small County. In 2000, the allocation percentages for these groups were 64%, 26%, and 10%, respectively. The Non-Profit Set-Aside, which is a function of federal law, requires that at least 12% of the credits be awarded to non-profit applicants. None of the other set-asides is either at issue here or affects the analysis or outcome. The same is true of the special targeting goals. For simplicity's sake, therefore, special targeting goals will be ignored in the discussion that follows, and it will be assumed, unless otherwise stated, that the Geographic and Non-Profit Set-Asides are the only factors (besides merit) that affect the Corporation's award of tax credits. The Petitioners and Intervenors (Collectively, "Petitioners") Lakesmart is a Florida limited partnership which has as one of its general partners a non-profit corporation. In the 2000 application cycle, Lakesmart applied to the Corporation for an award of tax credits from the Medium County allocation. Lakesmart is a "Non-Profit Applicant" for purposes of the Non- Profit Set-Aside. RPK is a Florida limited partnership. In the 2000 application cycle, RPK applied to the Corporation for an award of tax credits from the Large County allocation. For purposes of the Non-Profit Set-Aside, RPK is a "for-profit Applicant." Meadow Glen and Coral Village are Florida limited partnerships. Each has a non-profit corporation as one of its general partners. Both applied to the Corporation in the 2000 application cycle for an award of tax credits from the Medium County allocation. Each is considered a "Non-Profit Applicant" for purposes of the Non-Profit Set-Aside. Evaluation, Ranking, and the Tentative Funding Range To distribute the finite amount of tax credits available each year, the Corporation has designed a competitive process whereby potential recipients file applications that the Corporation grades according to selection criteria set forth in the QAP. Points are assigned based on compliance with these criteria. At the end of the evaluation process, each applicant that met the threshold requirements will have earned a final score that determines its rank in terms of relative merit, with higher-scored projects being "better" than lower-scored projects. Because of the set-asides, however, credits are not awarded simply on the basis of comparative scores. Instead, the Geographic Set-Asides require that the applicants be sorted and ranked, according to their scores, within the Large County, Medium County, and Small County groups to which they belong and from whose credit allocations the successful applicants will be funded. As a result, therefore, if the several applicants with the three highest scores in the entire applicant pool were all in the Large County group and the applicant with the fourth highest score were in the Small County group, for example, then the latter applicant would be ranked first in the Small County group. This means, to continue with the example, that if the first- and second-ranked projects in the Large County group were to exhaust the credits allocated to that group, then the applicant with the third highest score overall would not be funded, while the applicant with the fourth highest score in the applicant pool (but ranked first in a county group) would be funded. 16/ After the Corporation has sorted the applicants by county group and ranked them, within their respective groups, from highest to lowest based on the applicants' final scores, it draws a tentative funding line within each group. Applicants above these lines are within the tentative funding range and thus apparently successful. Conversely, an applicant below the tentative funding line in its county group will not receive tax credits unless, to satisfy a set-aside or fulfill a special targeting goal, it is moved into the funding range. In the 2000 application cycle, a preliminary outcome which had occurred only once before, in 1997, happened again: the aggregate of credits requested by the non-profit applicants within the tentative funding range did not amount to the Non- Profit Set-Aside percentage — 12% in 2000 — of total available credits. Therefore, the Corporation needed to elevate as many apparently unsuccessful non-profit applicants into the funding range — and concomitantly to remove as many apparently successful for-profit applicants from the funding range to make room for the favored non-profit applicant(s) — as necessary to fulfill the 12% quota. An Aside on Categorical Ranking The separation of applicants into three groups according to the Geographic Set-Asides, and the effect that has on determining which applicants will receive credits, was mentioned above. To better understand the parties' dispute regarding the procedure for satisfying the Non-Profit Set-Aside when, as in 2000, it is necessary to award credits to a putatively unsuccessful non-profit applicant at the expense of a putatively successful for-profit applicant, a second, more detailed look at the implications of categorical ranking will be helpful. Because of the Non-Profit Set-Aside, the set of all qualified applicants ("Applicant Pool") is divided into two classes: non-profit and for-profit corporations. As will be seen, the class of non-profit corporations is further separated, for purposes of the Non-Profit Set-Aside, into two subclasses: domestic non-profits and out-of-state, or foreign, non-profits. Finally, to repeat for emphasis, all qualified applicants, regardless of class or subclass (if applicable), fall within one of three groups according to the Geographic Set-Asides: Small County, Medium County, and Large County. The following chart depicts the relevant classification of applicants within the Applicant Pool: Applicant Pool Non-profits For-profits Domestic Foreign Small County Medium County Large County Because, as the chart shows, each applicant fits into several categories, applicants may be ranked in order of their comparative scores in a variety of combinations, depending on how they are sorted, e.g. all applicants, all Large County for- profits, all foreign non-profits, etc. Once the Corporation has drawn the tentative funding lines (which, recall, are county group-specific) and determined preliminarily which applicants will receive funding and which will not, two additional categories exist: applicants within the funding range and applicants below (or outside) the funding range. Owing to the nature of the instant dispute, however, the only non-profits discussed below are those outside the tentative funding range, unless otherwise stated, and the only for-profits considered are those within the tentative funding range, unless otherwise stated. 1/ The above makes clear, it is hoped, that a reference to the "highest scored" applicant, without more, may describe many applicants, such as the highest scored domestic non-profit, the highest scored non-profit in the Small County group, the highest scored foreign non-profit in the Large County group, and so on. More information is needed to pinpoint a particular entity. For ease of reference, and to facilitate the discussion and disposition of the present dispute, the following abbreviations will be used in this Recommended Order as shorthand descriptions of applicants’ defining characteristics: Abbreviation Meaning NP Non-profit applicant FP For-profit applicant High- highest scored Low- lowest scored D domestic entity (i.e. organized under Florida law) F foreign entity (i.e. organized under the law of a state other than Florida) S, M, and L Small, Medium and Large County, respectively ! highest or lowest scored within the indicated category; e.g. High- NP(S!) means highest scored non- profit within the Small County group; Low-FP(S!) means lowest scored for-profit in the Small county group x, y variables Combining these abbreviations provides an increasingly precise description, as more information is added. For example: Combination Description High-NP Highest scored non-profit in some, unknown category High-NP[D!] Highest scored domestic non- profit, unknown group; is not necessarily the highest scored non-profit in the class of non- profits High-NP[F!] Highest scored foreign non-profit, unknown group; is not necessarily the highest scored non-profit in the class of non-profits High-NP[D!](S) Highest scored domestic non- profit, located in the Small County group; not the highest scored non-profit within the Small County group High-NP[D](S!) Highest scored non-profit in the Small County group; is a domestic corporation but is neither the highest scored non-profit nor highest scored domestic non-profit High-NP[D](S) Highest scored domestic non-profit in the Small County group; is neither the highest scored non- profit, the highest scored domestic non-profit, nor the highest scored non-profit in the Small County group Low-FP! Lowest scored for-profit in the class of for-profits Low-FP(M!) Lowest scored for-profit in Medium County group; is not necessarily the lowest scored for- profit in the class of for-profits The Controversy: Gored Oxen and Leapt-Over Frogs The solution to the problem that arose in the 2000 application cycle when an insufficient number of non-profit applicants wound up initially within the tentative funding range is found in two places: Rule 67-48.032, Florida Administrative Code, and the 2000 QAP. Although the language of the two is not identical, the parties agree that the rule and the pertinent QAP provisions have the same meaning, despite their differences in wording. The undersigned has concluded, however, that the differences, though subtle, substantially affect the outcome of this case. It is necessary, therefore, to read them carefully. Rule 67-48.032(2), Florida Administrative Code, provides in pertinent part: To ensure that the minimum 10% is set aside, the Corporation has determined that an initial allocation of 12% to qualified Non- Profits will be met. In order to achieve the initial 12% set aside, Applications from Applicants that qualify or whose General Partner qualifies as a Non-Profit entity pursuant to Rule 67.48.002(71), F.A.C., HUD Regulations, Section 42(h)(5)(c), subsection 501(c)(3) or 501(c)(4) of the Code and organized under Chapter 617, Florida Statutes, or organized under similar state law if organized in a jurisdiction other than Florida and meet scoring threshold requirements shall be moved into the funding range, in order of their comparative scores, with Applicants whose Non-Profit entity is organized under Florida law receiving priority over Non-Profit entities of other jurisdictions, until the set-aside is achieved. The last Non-Profit Development that is moved into the funding range in order to achieve the 12% initial set-aside shall be fully funded even though that may result in a higher Non-Profit set-aside. This will be accomplished by removing the lowest scored Application of a for-profit Applicant from the funding range and replacing it with the highest scored Non- Profit Application below the funding range within the applicable Geographic Set-Aside pursuant to the QAP. This procedure will be used again on or after October 1, if necessary, to ensure that the Agency allocates at least 10% of its Allocation Authority to qualified Non-Profit Applicants. Any for-profit Applicant so removed from the funding range will NOT be entitled to any consideration or priority for the receipt of current or future Housing Credits other than placement on the current ranking and scoring list in accordance with its score. Binding Commitments for Housing Credits from a future year will not be issued for Applicants so displaced. Paragraph 2, at page 2, of the Corporation’s 2000 QAP states: [The Corporation] has determined that an initial allocation of 12% to qualified Non- Profits will ensure that the 10% requirement will be met in the event that all Developments included in the initial 12% do not receive an allocation. In order to achieve the initial 12% set-aside a tentative funding line will be drawn. Then, Applications from Non-Profit Applicants that meet scoring threshold requirements shall be moved into the tentative funding range, in order of their scores with Applicants whose Non-Profit entities are organized under Chapter 617, Florida Statutes, having priority, until the 12% set-aside is achieved. This will be accomplished by moving the lowest scored Application of a for-profit Applicant in the funding range down in ranking so it is ranked below the lowest Non-Profit Applicant within the funding range and moving the highest scored Non-Profit Applicant organized under Chapter 617, Florida Statutes below the funding range within the applicable Geographic Set- Aside pursuant to the QAP up in ranking so it is ranked one ranking space above the for-profit Applicant that was moved down in ranking. If no such Applicant exists, the highest Non-Profit Applicant organized under similar statutes from another state which is below the funding range within the applicable Geographic Set-Aside pursuant to the QAP, will be moved into funding range in the same manner as stated in the previous sentence. This procedure will be used again on or after October 1, 2000, if necessary, to ensure that the [Corporation] allocates at least 10% of its Allocation Authority for 2000 to qualified Non-Profit Applicants. Any for-profit Applicant so removed from the funding range will NOT be entitled to any consideration or priority for the receipt of current or future housing credits other than placement on the current ranking and scoring list in accordance with its score. Binding Commitments for housing credits from a future year will not be issued for Applicants so displaced. The last Non- Profit Applicant moved into the funding range, in order to meet the initial 12% set- aside or in order to meet the minimum 10% set-aside after October 1, 2000, will be fully funded contingent upon successful credit underwriting even though that may result in a higher Non-Profit set-aside. After the full Non-Profit set-aside amount has been allocated, remaining Applications from Non-Profit organizations shall compete with all other Applications in the HC Program for remaining Allocation Authority. The Corporation's interpretation of Rule 67-48.032, Florida Administrative Code, and paragraph 2 of the 2000 QAP (collectively, the "Instructions") to determine the procedure for satisfying the Non-Profit Set-Aside in connection with the 2000 application cycle has caused considerable controversy — and led to this proceeding. The controversial interpretation was publicly manifested on September 15, 2000, when the Corporation published a preliminary ranking sheet on its web site which reflected adjustments that its staff had made to fulfill the Non-Profit Set-Aside. Within days, adversely affected applicants were complaining that the Corporation's staff had misinterpreted the Instructions. The Corporation's staff had construed the Instructions to mean that when it is necessary to displace a for-profit within the tentative funding range to satisfy the Non-Profit Set-Aside, the following procedure must be followed: Remove Low-FP!(x!) and replace it with High- NP[D](x). 2/ If there is no domestic non- profit in county group x, then replace Low- FP!(x!) with High-NP[F](x!). 3/ This construction permits High-NP[D!], if there is one, High- NP![F!] if not, to remain outside the funding range, because it might not be in county group x. In practice, the process that the Corporation’s staff had settled upon operated, in the circumstances presented, to the detriment of Petitioners. Here is how it worked. After the tentative funding range was established, the lowest scored for- profit in the class of for-profits was in the Small County group. 4/ There were no non-profits, domestic or foreign, in that group to elevate, however, and so Low-FP!(S!) could not be removed; the fall-back procedure was followed. See endnote 4. As it happened, RPK was Low-FP(L!) and had a lower score than Low-FP(M!). Thus, under the Corporation's staff's interpretation of the Instructions, as revealed by the rankings posted on September 15, 2000, High-NP[D](L!) was moved into the funding range in the place of RPK, even though High-NP[D](L!)'s final score was lower than that of Lakesmart — which was High- NP. (Coral Village and Meadow Glen were the second- and third-ranked domestic non-profits, respectively, in the Medium County Group. Sorted by class, Lakesmart, Coral Village, and Meadow Glen would be ranked first, second, and sixth in the class of non-profit applicants.) 5/ The second lowest-scored for-profit in the class of for-profits was also in the Large County group. Thus, it became Low-FP!(L!) after RPK was removed. It, too, was replaced by the Large County non-profits that became, in turn, High-NP[D](L!) as the next highest-ranked non-profit in that group was moved up into the funding range to satisfy the 12% Non-Profit Set-Aside. In all, the Corporation's staff proposed to elevate — and hence award tax credits to — four non-profit applicants whose final scores were lower than Lakesmart's and Coral Village's. One of those four putative beneficiaries had a lower final score than Meadow Glen's. Lakesmart and others who disagreed with the Corporation’s staff advanced an alternative interpretation of the Instructions. In their view, to ensure that the Non-Profit Set-Aside is met requires the following maneuver: Remove Low-FP(x!) and replace it with High- NP[D!](x). 6/ If there is no domestic non- profit outside the funding range, then replace Low-FP(x!) with High-NP. 7/ This interpretation admits the possibility that Low-FP! might remain in the funding range, because it might not be in county group x. Under this interpretation, favored by all Petitioners, Lakesmart and Coral Village would be elevated into the funding range, rather than being "leap-frogged" by lower-scored non- profits, and RPK would not be displaced. (Of course, Petitioners' interpretation would require that some other for- profit ox be gored — one having a higher score than RPK's.) These competing interpretations of the Instructions were presented to the Corporation's board for consideration at its public meeting on September 22, 2000. After a discussion of the issues, in which members of the public participated, the board voted unanimously to accept the interpretation that the staff had acted upon in preparing the September 15, 2000, rankings. Later in the same meeting the board adopted final rankings, which were prepared in accordance with the approved interpretation, that resulted in the denial of Petitioners' applications for tax credits. The 1997 Awards: Precedent or Peculiarity? Petitioners maintain that their interpretation of the Instructions is supported by a supposed precedent allegedly set in 1997 that, they say, was binding on the Corporation in 2000. In the 1997 cycle, it so happened that after drawing the tentative funding lines, the sum total of credits sought by non-profits within the preliminary funding range failed to reach the then-required threshold of 10%. Thus, for the first time, the Corporation faced the need to replace higher-scored for- profits (that were apparently in line for funding) with lower- scored non-profits that otherwise would not have received credits. The QAP that governed the 1997 awards provided for the Non-Profit Set-Aside but was silent on the procedure for satisfying it: The Agency will allocate not less than 10% of the state’s allocation authority to projects involving qualified, non-profit Applicants, provided they are non-profits organized under Chapter 617, Florida Statutes, and as set forth in Section 42(h)(5) of the Internal Revenue Code, as amended, and Rule Chapter 9I-48, Florida Administrative Code. Respondent's Exhibit 2, page 8. Rule 9I-48.024(3), Florida Administrative Code (1997), did contain directions for carrying out the required substitution. It prescribed the following procedure for elevating non-profits: If 10% of the total Allocation Authority is not utilized by Projects with Non-Profit Applicants, Applications from Non-Profit Applicants that meet scoring threshold requirements shall be moved into the funding range, in order of their comparative scores, until the 10% set-aside is achieved. This will be accomplished by removing the lowest scored Application of a for-profit Applicant from the funding range and replacing it with the highest scored Non-Profit Application below the funding range within the applicable Geographic Set-Aside pursuant to section (2) above. Petitioners' Exhibit 1. These provisions will be referred to hereafter as the "1997 Directions," to distinguish them from the Instructions. Gwen Lightfoot was the Corporation's Deputy Development Officer in 1997. In that capacity, she was directly responsible for implementing the rules relating to the award of low-income housing tax credits. To satisfy the Non-Profit Set- Aside, Ms. Lightfoot followed the 1997 Directions as she understood them. In so doing, she sorted the eligible non- profits by class (i.e. without regard to their respective county groups) and ranked them in score order, from the highest scoring project to the lowest scoring project. 8/ Then, Ms. Lightfoot moved the highest scoring non-profit in the class of non-profits to a position immediately above the for-profit with the lowest score in the same geographic set-aside as the favored non-profit so that the non-profit project would be fully funded. That is, she replaced Low-FP(x!) with High-NP!(x!). This process was repeated, moving the next highest ranked non-profit to a position immediately above the lowest-ranked for-profit in the same geographic set-aside as the elevated non-profit, until the Non-Profit Set-Aside was met. Although the Corporation presently argues that its board was not fully informed in 1997 as to the procedure that Ms. Lightfoot followed in fulfilling the mandate of the Non- Profit Set-Aside, a preponderance of evidence established that Ms. Lightfoot's actions were within the scope of her authority and taken in furtherance of her official duties; that the board was aware of what she had done; and that the board took no action to change the results that followed from Ms. Lightfoot's interpretation and implementation of the 1997 Directions. Ms. Lightfoot's application of the 1997 Directions, in short, was not the unauthorized act of a rogue employee. Rather, as a matter of fact, her action was the Corporation's action, irrespective of what any individual board member might subjectively have understood at the time. In the years following the 1997 awards, Rule 9I- 48.032, Florida Administrative Code, was re-numbered Rule 67- 48.032 and amended three times, the most recent amendment becoming effective on February 24, 2000. As a result, the 1997 Directions evolved into the language of Rule 67-48.032(2) which, though not identical, retains the essential meaning of its predecessor. During the same period, the QAP was also amended three times, the version controlling the 2000 application cycle having been approved by the governor on December 16, 1999, and adopted by reference in the Florida Administrative Code on February 24, 2000. Unlike the revisions to Rule 9I-48.032(3), however, the changes in the QAP that relate to the issue at hand are significant, because the 2000 QAP sets forth a procedure for fulfilling the Non-Profit Set-Aside when the collective amount of credits sought by non-profits in the tentative funding range falls short of the mandated mark, whereas the 1997 QAP did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Corporation enter a final order dismissing the petitions of Petitioner Lakesmart, Petitioner RPK, and Intervenors Meadow Glen and Coral Village. DONE AND ENTERED this 7th day of February, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2001.
Findings Of Fact On or about January 26, 1990, the Respondent sought competitive bids for Lease Number 590:2154 for the lease of certain office space in Brandon, Florida. The bid opening occurred on March 1, 1990, and Intervenor was determined to have submitted the lowest responsive bid. In addition to Intervenor's bid, the only other bid received in response to this invitation to bid was from Regina M. Hasey, for whom Petitioner purports to act as agent in this proceeding. A condition set forth in the invitation to bid was that bids would remain valid for a minimum of forty-five days following the bid opening. There is no dispute that Regina M. Hasey withdrew her bid and terminated her offer on April 18, 1990, after the expiration of this forty-five day period. Petitioner's representative admitted that he knew of Hasey's termination of her offer prior to the filing of this protest, and that he had been copied on the letter of April 18, 1990 withdrawing her bid. On or about May 8, 1990, the Department notified Hasey of its intent to award this lease to Intervenor, and on May 10, 1990, the Petitioner filed its notice of protest concerning this award claiming that Intervenor's bid was not responsive to the parking requirements in the invitation to bid. Petitioner is designated in the Hasey bid as agent for Hasey, and it is clear that Petitioner did not submit this bid in its own right, but rather solely as agent for Hasey. Petitioner's protest was filed without any reasonable inquiry by Petitioner into the facts surrounding the Respondent's invitation to bid, Intervenor's bid, and the legal consequences of the withdrawal of Hasey's bid. As a result of Petitioner's protest, the award of Lease Number 590:2154 to Intervenor has been delayed, at this stage of the proceeding, for almost three months, and the Respondent and Intervenor have had to incur legal expenses to oppose Petitioner's protest and proceed with this award. There is no evidence in this record to indicate that Petitioner filed this protest in an attempt to change the agency's mind regarding the award of this lease to Intervenor, and in fact there is no possible basis upon which this award could have been made to Petitioner after Hasey withdrew her bid. As such, Petitioner's protest was entirely frivolous. See Mercedes Lighting and Electrical Supply v. Department of General Services, et al., 12 F.A.L.R. 1912 (Fla. 1st DCA 1990).
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioner's protest for lack of standing, and awarding Lease Number 590:2154 to Intervenor. DONE AND ENTERED this 27th day of July, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 27th day of July, 1990. APPENDIX Rulings on Intervenor's Proposed Findings of Fact: Adopted in Findings 1 and 2. Adopted in Finding 3. 3-4. Adopted in Finding 4. Rejected as procedural matters and otherwise as unnecessary. Adopted in Finding 3. Rejected as unnecessary. Adopted in Findings 3 and 4. Adopted in Finding 6. 10-11. A ruling has been reserved on the issue of an award of attorney's fees and costs, and these proposed findings are solely related to that issue which has not been addressed in this Recommended Order. Copies furnished: Jack Farley, Esquire District 6 Legal Office 4000 West Dr. Martin Luther King, Jr., Blvd. 5th Floor, Room 520 Tampa, FL 33614-9990 Alan Taylor P. O. Box 7077 Winter Haven, FL 33883-7077 Mark A. Brown, Esquire Theo J. Karaphillis, Esquire P. O. Box 3239 Tampa, FL 33601 R. S. Power, Agency Clerk 1323 Winewood Blvd. Building One, Room 407 Tallahassee, FL 32399-0700 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact Findings stipulated to by the parties On March 27, 1990, the school district issued an Invitation For Bids, Bid NO. 91-037V for Security Guard Services - Term Contract. Special Condition 5 of the bid specifications states as follows: Bidders shall submit evidence with this bid of the following: The bidder is presently engaged in security services; and The bidder has an established record of satisfactory performance over the past three (3) years and shall furnish names of five (5) organizations for whom the bidder has provided security services during this period. Failure to provide this information with the bid shall result in disqualification of bid submitted. (emphasis furnished) The school district received timely bids upon Bid NO. 91-037V from eight bidders, including the Petitioner, Security Services, Inc. Bids were open on April 19, 1990, at 2:00 p.m. Six of the eight bidders upon Bid NO. 91-037V submitted with their bids the five (5) references required by Special Condition 5 of the Invitation To Bid. The Petitioner, Security Services, Inc., failed to submit the required five (5) references along with its bid. Security Services, Inc.'s, bid of $6.25 per hour constituted the lowest hourly rate contained in any of the bid submittals. Universal Security Consultants' bid submittal contained a proposal to render guard services at the rate of $6.88 per hour and constituted the second lowest hourly rate contained in any of the bid submittals. In addition, Universal's bid submittal met all other requirements of the bid specifications and included the five (5) references required by Special Condition 5. Prior to issuing a recommendation upon the bid item, the staff of the school district contacted the five references submitted by Universal Security Consultants with its bid, and each reference indicated that Universal had satisfactorily provided security guard services. After reviewing and evaluating the bid submittals, the staff of the School Board recommended the rejection of Security Services, Inc.'s bid for its failure to meet the requirements of Special Condition 5 of the Invitation To Bid. It was further recommended that a contract be awarded to Universal Security Consultants under Bid NO. 91-037V. The recommendations and bid tabulations were posted on April 26, 1990, at 3:00 p.m. On April 27, 1990, the Petitioner, Security Services, Inc., submitted a document entitled "Letter Of Protest -- Bid NO. 91-037V" to the school district. Within the document, Security Services, Inc., notified the school district of its protest of recommendations that were posted on April 26, 1990. The document states that "[w]hile preparing this year's bid package, I [the owner of Petitioner] overlooked the section pertaining to requirement of having to list references." The document requests the school district to reconsider the bid of Security Services, Inc., and lists the following organizations as references: The School Board of Broward County, Florida; WSCV - Ch. 51; The Lauderhill Mall; Telemundo Productions, Inc.; and Midway Club Apartments. The Petitioner, Security Services, Inc., had previously been awarded contracts by the school district to provide security guard services. The first contract was dated February 4, 1988. A second contract was awarded to Petitioner on March 1, 1989, and the Petitioner was providing security guard services to the school district under the second contract at the time of the bid proceedings pertaining to Bid NO. 91-037V. The first contract awarded to the Petitioner by the school district arose from Security Services, Inc.'s, bid submission to a certain bid numbered 88-518D. The bid specifications for Bid NO. 88-518B did not require bidders to submit references, and none were provided at that time by Security Services, Inc. The second contract awarded to the Petitioner by the school district arose from Security Services, Inc.'s, bid submission to a certain bid numbered 89-368V. The bid specifications for Bid NO. 89-368V contained a requirement to submit references identical to the requirement contained in the bid specifications for Bid NO. 91-037V. Security Services, Inc., did submit five references along with its bid proposal to Bid NO. 89-368V. The five references listed in the Petitioner's bid submittal to Bid NO. 89-368V were as follows: Broward County School Board; WSCV-Ch. 51; Lauderhill Mall; Lauderdale Yacht Basin; and Woodhue Condominium Association. On May 1, 1990, the school district received a formal written Notice Of Protest [dated April 30, 1990] from Security Services, Inc. Within the formal written protest, the Petitioner requested that it be awarded the contract for security guard services on the basis of the Petitioner's work being satisfactory and the lowest bid. The protest asserted that Security Services, Inc., had de facto complied with the requirements of Special Condition 5 as Petitioner had provided this information to the school district in previous years and that such information was on file at the school board. The Petitioner further asserted that the failure to submit the five (5) references was an irregularity that could be waived by the school district or that was correctable after opening of the bids. The formal written notice of protest filed by Security Services, Inc., states as follows: There was an unintended omission from the Security Services, Inc., Invitation to Bid in that through inadvertence, Security Services, Inc., failed to provide a list of five (5) organizations for whom the bidder has provided security services as required by Paragraph 5B of the Special Conditions. On May 15, 1990, the School Board considered the protest filed by Security Services, Inc., and rejected the same. The Petitioner subsequently requested further proceedings in accordance with Chapter 120, Florida Statutes, and these proceedings commenced. b. Additional facts established at hearing: The School Board requires the inclusion within its bids of the names of five (5) organizations for whom the bidder has provided security services over the past three (3) years in order to be able to evaluate the present ability of the bidder to perform under a contract awarded under the bid item. The information as to references is evaluated and investigated by the school district as to the apparent low bidder prior to the posting of recommendations for the award of the bid item. Security Services, Inc., has satisfactorily performed the two security guard contracts it has previously been awarded by the School Board, and there have been no complaints about the performance of Security Services, Inc., under those two contracts. At the time the bids in this case were opened, the School Board already knew that Security Services, Inc., could perform satisfactorily because it had been doing so for the School Board for two years. Over the term of the contract, the difference in cost between the low bid submitted by Security Services, Inc., and the second low bid submitted by Universal Security Consultants, will amount to approximately $50,000.00.
Recommendation For the foregoing reasons, it is RECOMMENDED that the School Board of Broward County enter a Final Order in this case concluding that the irregularities in the bid submitted by Security Services, Inc., are minor irregularities, that those irregularities are waived, and that Bid NO. 91-037V should be awarded to Security Services, Inc. DONE and ENTERED this 24th of July, 1990, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day 24th day of July, 1990.
The Issue Whether the Petitioner is entitled to certification as a disadvantaged business enterprise.
Findings Of Fact ALS is a Florida corporation which filed an application for DBE certification on or about August 21, 1996. On December 13, 1996, the Department issued the notice of intent to deny Petitioner’s application. ALS is owned by Rachel and Bobby Lines. Mr. Lines owns forty percent of the company, his wife the remaining sixty. Mrs. Lines serves as president for the corporation. ALS is in the business of providing seeding and grassing services for construction contracts. Mr. and Mrs. Lines have been in this business since the 1970s. Mrs. Lines has a bachelor’s degree in business and has always had an active role in the family business. In 1979 and 1980 Mrs. Lines borrowed $10,000 and invested the money in ALS. These loans were secured by assets which did not belong to Mr. Lines. Unlike his wife, Mr. Lines was not personally liable for the loans. Similarly, in 1981 and 1983 Mrs. Lines obtained loans for which she was personally responsible and used the funds to benefit ALS. All loans secured by Mrs. Lines were repaid by Petitioner. During the years the loans were secured, Mr. Lines did not borrow monies, for which he was personally responsible, to fund ALS business activities. In short, Mr. Lines made no capital contribution to the business commensurate with the funding Mrs. Lines put into the business. When the Petitioner was incorporated in 1980, one hundred percent of the corporate stock was placed in Mr. Lines’ name. Although Mrs. Lines agreed to this arrangement, it did not truly reflect the partnership that she and her husband enjoyed regarding the business. Moreover, the issuance of the stock in her husband’s name did not accurately consider and compensate her for the loans for which she personally would have been liable had the company not repaid the sums she secured in its behalf. Mrs. Lines has worked full-time for the Petitioner since 1986. It is undisputed that she is responsible for the day-to-day operations of the company. In 1991, Mr. Lines conveyed sixty percent of the Petitioner’s stock to his wife. Mrs. Lines became president of ALS at the same time. In 1995, ALS was certified by Palm Beach County, the Palm Beach County Aviation Authority, and the South Florida Water Management District as a minority business enterprise. While it is apparent both Mr. and Mrs. Lines have contributed “sweat equity” to their company, only Mrs. Lines has personally been liable for loans taken out in order to put money into the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting Petitioner’s application for certification as a DBE. DONE AND ENTERED this 4th day of June, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1997. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Ms. Diedre Grubbs, MS #58 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Mary S. Miller Assistant General Counsel Department of Transportation Haydon-Burns Bldg, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mary Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be placed on the convicted vendor list.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into a settlement document. The settlement document provides as follows: The Petitioner, Fisher Scientific and the Respondent, State of Florida, Department of Management Services ("Department"), by their undersigned attorneys, enter into this agreed upon settlement permitting informal disposition pursuant to Sections 287.133(3)(e)2f and 120.57(3), Florida Statutes. The Joint Stipulation of Fact entered into by the parties is attached as Exhibit A and the parties stipulate that there is no material issue of fact remaining which would require a formal hearing. The Joint Stipulation of Fact establishes that the Petitioner has satisfied mitigating elements contained in 287.133(3), Florida Statutes, including elements that raise a rebuttable presumption in favor of Petitioner, that it would not be in the public interest to place Petitioner on the Florida Convicted Vendor's List. There are no stipulated facts that overcome the rebuttable presumption. THEREFORE, the parties agree to disposition of this matter in which it is requested a Final Order be issued adopting the settlement agreement and Joint Stipulation of the parties pursuant to Sections 287.133(3)(e)2f and 120.57(3), Florida Statutes, and finding that it is not in the public interest to place the Petitioner on the Florida Convicted Vendors List. Paragraphs 1, 2, and 10 through 21 of the Joint Stipulation of Facts appended to and incorporated in the settlement document provide as follows: On June 10, 1994, FSC was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. FSC entered a guilty plea to one count of a misdemeanor Information charging FSC with making a false writing in violation of 18 U.S.C.A. Sections 1018 and 2. A copy of the Information is attached as Exhibit 1. The entry of the guilty pleas by FSC was made pursuant to a Plea Agreement with the United States Attorney for the District of New Jersey dated March 10, 1994. A copy of the plea agreement is attached as Exhibit 2. . . . Pursuant to Paragraphs 287.133(3)(a) and (b), Florida Statutes, FSC made timely notification to the Department of Management Services and provided details of the misdemeanor conviction. On October 3, 1997, the Department of Management Services issued a notice of intent pursuant to subparagraph 287.133(3)(e)1. Florida Statutes. Exhibit 6. On October 16, 1997 pursuant to subparagraph 287.133(3)(e)2., Florida Statutes, FSC timely filed a petition for formal administrative hearings pursuant to subsection 120.57(1) Florida Statutes, to determine whether it is in the public interest for FSC to be placed on the State of Florida Convicted Vendor List. Exhibit 7. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor on the Convicted Vendor List. Subparagraph 287.133(3)(e)3.d., Florida Statutes, establishes "(p)rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. (a) In March, 1994, FSC paid restitution to the U.S. Agency for International Development (AID) in the amount of $1,200,000. FSC also reimbursed AID for the cost of its investigation in the amount of $500,000. FSC paid these amounts prior to the entry of its conviction order, a copy of which is attached as Exhibit 3. On July 8, 1994, FSC paid a criminal fine in the amount of $20,000. Subparagraph 287.133(3)(e)3.e., Florida Statutes, establishes "(c)ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. (a) FSC cooperated fully and immediately with the federal authorities investigating the performance of FSC's International Division relating to certain contracts FSC entered into with foreign organizations to supply laboratory products. Payments for such products sold to foreign organizations were made to FSC by AID pursuant to various federal statutes and programs. A summary of FSC's cooperation is detailed in a letter dated May 24, 1994, to Ms. Beth Nuegass, Senior U.S. Probation officer, a copy of which is attached as Exhibit 4. FSC fully cooperated with the Department of Management Services in connection with its investigation initiated pursuant to section 287.133, Florida Statutes. Subparagraph 287.133(3)(e)3.f., Florida Statutes, establishes "(d)issociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. The individual primarily responsible for the illegal conduct resulting in FSC's conviction, John Sommer, left FSC to join FSC's competitor several days prior to the commencement of AID's investigation. Several of Sommer's subordinates who shared his culpability also left at this time. The employees who may have been peripherally involved with Sommer and who remained employed with FSC were disciplined. FSC also changed the organization structure of the International Division subsequent to its conviction. FSII, FSC's parent company, established Fisher Scientific Worldwide Inc., as the new wholly owned subsidiary responsible for managing FSC's international business. Accordingly, the entity "Fisher Scientific Company" which now conducts business with state agencies and political subdivisions in Florida is separate from the unit which conducts business with the U.S. Agency for International Development. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "(p)rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. FSC engaged in self-policing in three respects: In 1990, FSC retained the law firm of Wilmer, Cutler & Pickering as a special counsel to conduct a through investigation and provide the results to AID and the U.S. Attorney. After 1990, FSC provided additional education and training to its International Division in compliance with the country of origin requirements of AID. FSC has promulgated and reinforced with training, a Code of Business Conduct which addresses unethical and fraudulent conduct by employees, including requirements of government contracting. Exhibit 8. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "(r)einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. (a) Attached as Exhibit 5 is a letter from Mr. Robert S. Perkins, Counsel to the Inspector General of AID, to FSC's counsel stating that no further action was taken by AID in order to suspend or debar FSC from contracting with AID or any other federal agency. Subparagraph 287.133(3)(e)3.h., Florida Statutes, establishes "(t)he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. FSC has acted as the prime supplier of laboratory products to the University of Florida and the State of Florida since 1990. FSC's satisfactory performance of these contracts has enabled various public laboratories throughout Florida to perform essential functions, standardizing in many instances, products available only through FSC. In addition, the merger of Curtin Matheson Scientific, Inc. and FSC in June, 1990, brought numerous contracts to FSC to provide clinical laboratory products to public hospitals and other institutions in Florida. Action preventing FSC from bidding on the requirements for laboratory products of these various state and political subdivisions laboratories would materially reduce the competition in procurement and reduce the scope of products and services available to such laboratories. This joint stipulation provides a full and complete factual basis for determining whether FSC should be placed on the Convicted Vendor List. In light of the facts and the criteria set forth in subparagraph 287.133(3)(e)3.a. through k., Florida Statutes, there are no disputed issues of material fact between the Department of Management Services and FSC which would require a formal hearing. The parties’ settlement document constitutes an informal disposition of all issues in this proceeding.
