The Issue Whether the Department of Management Services' (Department) intent to award the contract pursuant to Invitation to Bid (ITB), Bid Number 33-840-980-E, to Frebon International Corporation, (FREBON), the second low bidder by price discount, and to reject the bid offered by Telecom Response, Inc. (TELECOM or TRI), the low bidder by price discount, was contrary to the Department's governing statutes, rules, policies, or the ITB? Further, whether the Department's proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious? See Section 120.57(3), Florida Statutes.
Findings Of Fact The ITB During the spring of this year, the Department developed an ITB for video teleconferencing equipment and video bridging equipment for all State of Florida agencies and other eligible users. Department staff developed the specifications for the ITB. The ITB was a revision of the existing contract held by TRI, which expired on August 20, 2000, rather than a new contract. During the ITB/specifications review process, a new condition was added to require vendors to give a percentage discount from a list price to aid users in getting more choices and complete systems. On May 9, 2000, the Department advertised ITB 33-840- 980-E actively soliciting bids. The bid title refers to "videoteleconferencing equipment." Vendors were notified that bids would be opened on June 14, 2000, at 2:00 p.m. and that the bid tabulations would be posted on July 20, 2000. The ITB contains two (2) pages of general conditions which are used in most if not all Department ITB solicitations. The ITB also contains special conditions which, among other things, provide for the "purpose" and "scope" of the bid. "The purpose of this bid is to establish a 12-month contract for the purchase of Video Teleconferencing Equipment & Video Bridging Equipment by all State of Florida agencies and other eligible users in accordance with the Eligible Users paragraph, General Conditions." (emphasis added). Under the "scope" section, the Department provided: The objective of this Invitation To Bid (ITB) is to establish a contract for the purchase, installation and a maintenance of video teleconferencing systems and bridging equipment. The prospective bidder must offer the complete line of videoconferencing products and/or video bridge products to configure desktop and/or room videoconferencing systems, for each manufacturer bid. In addition the bidder must provide replacement parts as needed for repairs. In accommodating the specific agencies needs for auxiliary hardware necessary to make the videoconferencing equipment and video bridges operationally complete, the bidder must also provide and support the Optional Bid Items as shown in the Price Sheets section of this bid. (bold emphasis in original). This section requires the bidder to offer the complete line of a manufacturer's products to configure desktop and/or room videoconferencing systems for each manufacturer bid, and to further provide optional equipment by brand name, which could include more than one manufacturer. The "prices" section of the ITB also states: [p]rices shall be submitted in the form of a percentage(%) discount off manufacturer's current published price list. Only a single discount may be offered for each category. List Prices & percentage discount will remain firm for the entire contract period. Discounted prices shall be firm net delivered price to ordering agency. A copy of the Manufacturer's unaltered list price sheet as originally published, in general distribution and in effect on the date of bid opening must be submitted with the bid. Failure to include this with bid package will result in rejection of bid. (bold emphasis in original). The "evaluation/award" special condition provides: "Award shall be by manufacturer's products, based on the highest discount given from the manufacturer's list price sheet for each item, on a multiple award basis. If the same manufacturer's brand is bid by more than one bidder, only the bid with the highest discount percentage shall be considered for an award. All other provisions of Awards Paragraph, General Conditions, shall prevail." (emphasis added). Compare with Findings of Fact 12. The Department also provided several specific specifications for video teleconferencing equipment. Subsection 1.1 provides that the specifications were specifically written for two (2) categories of equipment: "(1) Videoconferencing Systems (includes Set-top, Desktop & Room Systems) (2) Video Bridging Systems." There were two types of commodities listed, i.e. videoconferencing equipment and video bridging equipment, types 1 and 2, respectively. Vendors, including TRI, understood that they could bid on either type or both at their choosing. The Department offered detailed specifications for the videoconferencing systems, category one. Specification 3.1.1 deals with "completeness of systems" and provides for room, set- top, and desktop systems. No other systems are discussed in the ITB. "A typical room system would include the codec, monitor(s), rollabout cart, and control unit." "A typical set-top system would include an integrated codec/camera unit; an external microphone pickup, and a control unit." A desktop system would "minimally include the PC codec card, a desktop video camera, a microphone/headset, and all associated cables for network connections & required peripherals." The remaining specifications, Sections 3.1.2 through 3.1.12.8, provide additional requirements for the room, set-top and desktop systems. Specification 3.3 provides for "optional bid items" which are provided for the convenience and benefit of the contract users as well as the awarded vendors. The optional bid items allow the purchaser a 'one-stop' procurement mechanism, as well as facilitating the ability of a contractor to provide a 'complete system' for the purchaser. It is incumbent on the purchaser to 'shop' the contract and purchase products that meet their needs at the lowest net delivered costs. The optional bid items shall never exceed the manufacturer's suggested list price (MSRP). Vendors must list all options to the contract that are to be offered as indicated on the attached bid sheets. The list must describe the item brand name/manufacturer, model number, and the net prices (see optional bid items price sheets). These "optional bid items" are products, which are not subject to the discount referred to in the "prices" or "evaluation/award" sections of the ITB. The ITB contains a price sheet for "videoconferencing systems" which, among other things, requires the vendor to provide the manufacturer's name bid, brand name bid, and the discount to be used with the manufacturer's price list. The price sheet has a "note" which provided: "Percentage discount applies to the entire manufacturer's line of videoconferencing equipment." (emphasis added). Immediately following the price sheet, the Department provided the vendor with a sheet to be used for "optional bid items" which required an item description, brand name, model number, and net price to be filled in by the vendor. The ITB does not require the vendor to apply the discount to the optional items. The ITB also contains a "manufacturer's certificate." A "special condition" provided: "All bids submitted, must include a certification executed by the manufacturer, stating that the bidder is an authorized dealer/representative of the manufacturer. Manufacturers must complete this form even if they own their own equipment. Dealer agreements shall not be accepted in lieu of manufacturer certification. Bids requiring manufacturer certification will not be considered if certification is not submitted with the bid." (bold emphasis in original). The certificate provided a "NOTE" which stated: "THIS MUST BE EXECUTED BY THE MANUFACTURER. DEALERS/REPRESENTATIVES ARE NOT AUTHORIZED TO SIGN THE CERTIFICATION FORM ON BEHALF OF THE MANUFACTURER. THIS CERTIFICATION MUST BE EXECUTED BY THE MANUFACTURER EVEN IF THEY ARE BIDDING THEIR OWN EQUIPMENT. FAILURE TO SUBMIT THIS CERTIFICATION WITH YOUR BID SHALL RESULT IN DISQUALIFICATION OF BID." The manufacturer certifies that the vendor is authorized to represent the manufacturer in the State of Florida. TRI did not believe the ITB, including the specifications and conditions, were unreasonable. There was no challenge to the ITB. TRI Inquiry On May 31, 2000, at the request of Mr. Brown of TRI, Ms. Brock of TRI, asked Mr. Hinson whether bidders were required to submit a bid response for categories one and two, mentioned above. Mr. Hinson advised her that a vendor could bid on either category. On June 12, 2000, and less than ten (10) days before the bid opening, Ms. Brock asked Mr. Hinson to clarify whether the Department was asking for a single or multiple discount, as to the set-top, desktop, and room teleconferencing systems. However, the general conditions of the ITB, paragraph 7, interpretations/deputes, provides that "[a]ny questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." This letter was untimely submitted pursuant to paragraph 7. The Department's Interpretation of the ITB Mr. Steve Welsh is an engineer. He received a Bachelor of Science degree in electrical engineering and a Master of Science degree in civil engineering. He has been employed by the Department's state technology office two and one-half years. He is not an expert in videoconferencing systems and this ITB was his first exposure to video teleconferencing systems. Mr. Hinson has been a purchasing specialist with the Department for more than five (5) years. He currently administers twelve (12) to thirteen (13) state contracts including the State's existing video teleconferencing contract with TRI. Mr. Welsh drafted the technical specifications for the videoconferencing equipment or systems in the ITB, including pages eleven (11) through seventeen (17), excluding Section 3.3, Optional Bid Items, which were prepared by Mr. Hinson. Mr. Welsh also drafted pages nineteen (19)(price sheet) and twenty (20)(optional bid items), with Mr. Hinson. Pages twenty-one (21) through twenty-seven (27) are standard forms. Set-tops, desktops, and room systems are three (3) generic types of videoconferencing systems. The definitions of these systems were general. Mr. Welsh was unaware of any industry standard regarding desktop, set-top, and room systems. The specifications required each vendor to offer a complete line of the manufacturer's videoconferencing equipment and systems, which might be included under these categories. The Department intended that the percentage discount apply to the complete manufacturer's line of videoconferencing equipment. Conversely, a vendor's offer of a manufacturer's partial line of equipment under "optional bid items" would be inconsistent with the objective of the "scope" section of the ITB. In general terms, Mr. Welsh knew that state agencies have differing needs for videoconferencing equipment and systems to communicate more effectively. However, he was able to give only one example; he knew that community colleges were looking for videoconferencing equipment for distance learning-type needs. Nevertheless, it was important for each vendor to offer a manufacturer's pre-configured or packaged systems, or configured systems from components and prices as the customer needed, or both. The ITB was not written to specifically address health care systems. Mr. Welsh did not consider certain industry specialties, such as education and health care systems, when he drafted the specifications, and there are no specifications expressly relating to videoconferencing products for use in educational or health care settings nor any mention of education or health care systems. However, it was his intent to draft flexible and wide-open specifications, so there may have been several types of industry specialties that he did not consider. The eligible users of this contract include any state, city, or county government, community and state universities, private colleges and universities, and any federal agency located within the State of Florida. The Department intended to award one contract with multiple manufacturers. The vendor could bid either category of equipment. The contract would be awarded to the vendor giving the highest discount for a particular manufacturer's products within each category. If a vendor did not offer a complete line of the manufacturer's products, the vendor could offer a greater discount and achieve a competitive advantage over other vendors who may have provided a more complete list. It was important to the Department to be able to compare each vendor's manufacturer's price list and then apply the vendor's discount in order to appropriately compare their bids. The Department was unable to compare TRI's bid because it submitted a discount for only one (1) page of Tandberg products versus the twenty-two (22) pages of discounted products offered by FREBON. Mr. Hinson explained that Tandberg's complete manufacturer's list price must consist of all items offered by Tandberg. However, Mr. Hinson did not know of the complete line of Tandberg video teleconferencing equipment and/or bridging equipment. The Department interprets the word "includes," which appears on TRI Exhibit 1, page 11, paragraph 1.1(1) of the specifications, to mean that desktop, set-top, and room systems could be included as part of a manufacturer's product line. However, it was not meant to be exclusive. The Department asserts that TRI's bid was non- responsive because TRI did not submit a complete, unaltered price list for all of Tandberg's video telecommunication products at a discount. TRI would have been awarded the contract for the Tandberg products if the bid had been responsive. On the other hand, the Department contends that FREBON's bid, containing approximately twenty-two (22) pages seemed complete and appeared to have included a complete line of Tandberg products. But, like TRI, GLOBAL's bid containing eight (8) pages, and DIGITAL's bid containing twelve (12) pages of discounted Tandberg products, were likewise non-responsive for being incomplete. TRI's one-page price list would not have been complete, in the Department's view, even if TRI had submitted a complete line of Tandberg products in the options portion of TRI's bid because TRI did not offer the discount for the options. Mr. Buddy Barker explained that a minor irregularity is a deviation from a specification which does not affect price and does not give one vendor a competitive advantage over another. He did not consider TRI's omission of other Tandberg's products to be a minor irregularity. The Tandberg Products There appears to be a major distinction between Tandberg videoconferencing systems, such as desktops, set-tops, and room systems, and Tandberg special "Application" products, such as health care and education products, in both appearance and functionality. Mr. Richard Grace is an Executive Vice President employed by the Applications Group at Tandberg, Inc. The term "Applications" within Tandberg, Inc. refers to market segments within their business. In this case, "Applications" pertains to distance education and health care products. During his deposition, admitted over objection as TRI Exhibit 18, Mr. Grace reviewed several documents, which were identified as DMS 0001, DMS 0006-0027, DMS 0029, and a memorandum dated June 9, 2000. These DMS numbered documents appear in TRI Exhibit 5. The DMS labeled documents were submitted with FREBON's bid. DMS 0006-0027 is the price list for the "Business Solutions" products manufactured by Tandberg, as well as the maintenance costs for various products, and also include the Tandberg health care and education products. These documents include the entire product lines price list for Tandberg's "Business Solutions" and "Applications" products. DMS 0006 is the first page from FREBON's bid and lists the "systems" products from Tandberg's "vision products price list." Tandberg's "vision products" are considered Tandberg "Business Solution" products, i.e., standard CODEC's or what Tandberg refers to as "off-the-shelf roll-abouts or set-top boxes." Off the shelf products are standard video conferencing systems that Tandberg designs and sells. They are also called roll-abouts, set-tops, and CODEC's. According to Mr. Grace, the Department's ITB asked vendors to offer to bid, material here, Tandberg's "Business Solutions" systems products. Mr. Grace said that Tandberg "education" and "health care" products would be considered room systems, but "the nature of the bid was looking for a more traditional answer of roll-abouts, which are administrative-type devises," and the "roll-abouts" are the systems referenced on TRI Exhibit 5, DMS 0006 and 0007, above the line, "Tandberg Educator," which were offered by TRI and FREBON. The products listed on TRI Exhibit 5, DMS 0006 to DMS 0007, above the notation "Tandberg Educator," are the videoconferencing systems manufactured and sold by Tandberg and, from a systems standpoint, are all of the "Business Solutions" products sold by Tandberg. The "systems" listed on these pages, (TRI Exhibit 5, DMS 0006 and the top of DMS 0007), include the only desktop, set-top, and room systems manufactured by Tandberg. Except for the omission of three (3) portable products listed in TRI Exhibit 5, DMS 0006 and 0007, of the FREBON bid, TRI's Tandberg "vision product price list" contained the same "systems" products as in FREBON's bid. (TRI Exhibit 2, BID 0033). The portables listed in FREBON's bid at DMS 0007, are not desktop, set-top, or room systems. TRI Exhibit 5, DMS 0007 through DMS 0013, lists accessories and optional items that can be attached to videoconferencing systems. DMS 0014 through DMS 0017, appear to be the maintenance pricing for the "Business Solution" products. DMS 0018 and 0019 refer to the "Application" products for Tandberg. DMS 0020 through DMS 0023 refer to the maintenance and service prices for the "Application"-based products, such as education systems, tutor products, and health care systems. Currently, Tandberg only focuses on the education and health care systems as part of its "Application" products. DMS 0024 through DMS 0027 are fees for the installation and on-site support for the Tandberg system throughout the world. Tandberg only manufactures the products listed on TRI Exhibit 5, DMS 0006-0027. However, Tandberg sells, but does not manufacture, other products such as "accord bridges," which are not included on these DMS pages. The Bids TRI TRI has been selling Tandberg video teleconferencing systems since February of 1998. TRI currently has the contract with the State of Florida for video teleconferencing equipment. TRI submitted a pricing sheet for videoconferencing systems and, in part, proposed to offer a 29.4 percent discount for "Tandberg Vision Business Solution Systems," the brand name for the bid. The discount applied to the "systems" products listed in the one-page, April 1, 2000, Tandberg price list. TRI's one-page price list, (TRI Exhibit 2, BID 0033), is the same as the first page of FREBON's Tandberg price list. (TRI Exhibit 5, DMS 0006). However, the second page of FREBON's price list (TRI Exhibit 5, DMS 0007), includes three (3) portable products which were included with the FREBON bid, but not included in the TRI bid. TRI felt that portables were not desktop, set-top, or room systems. Further, the products listed on TRI Exhibit 5, DMS pages 0007 (after the "portables" section) through DMS 0027, included by FREBON, were not included by TRI because they are not desktop, set-top, or room systems. TRI defines video teleconferencing systems to include only desktop, set-top, and room systems. Also, the terms videoconferencing systems and equipment are used interchangeably. Accordingly, TRI, consistent with its understanding of the Department's ITB, submitted a one-page price list for Tandberg desktop, set-top, and room system products. Having reviewed the ITB, TRI thought the Department, in requesting bids for video teleconferencing systems, was requesting a manufacturer's, here Tandberg's desktop, set-top, and room "systems" products only, and not the manufacturers, here Tandberg's, special "Application" products. TRI also offered a price list for optional items, which were accessories that could be attached and used as part of a system, with brand names including, but not limited, to Panasonic, Tandberg, and ELMO. TRI also provided a price schedule, 4.1.00, Exhibit A, which provided net prices for described systems, portables, CODEC's, for example. TRI's 29.4 percent discount does not apply to these items. FREBON, GLOBAL, and DIGITAL Three other vendors submitted bids offering discounts for the Tandberg line of video teleconferencing equipment. FREBON offered a 22.3 percent discount off Tandberg's price list consisting of twenty-two (22) pages of Tandberg products. Page one of FREBON's submission (TRI Exhibit 5, DMS 0006), provides the same information set forth in TRI's one (1) page price list, Exhibit B (TRI Exhibit 2, BID 0033). The remaining pages (TRI Exhibit 5, DMS 0007-DMS 00027), were not provided by TRI. GLOBAL offered a 21 percent discount off of Tandberg's price list for eight (8) pages of Tandberg products. (TRI Exhibit 5, DMS 0031-0038). DMS 0031-0032 provide the same information as TRI's price list, although GLOBAL adds three (3) products under the heading "portables," which are omitted from the TRI price sheet. DIGITAL also submitted a bid for video teleconferencing equipment offering the Tandberg line of products. However, DIGITAL offered multiple discounts. DIGITAL provided twelve (12) pages of Tandberg products. The Initial Bid Tabulation Posting On July 20, 2000, the Department posted the initial bid tabulation form for the video teleconferencing equipment. TRI received a copy of the bid tabulation. DIGITAL'S bid was deemed non-responsive because DIGITAL offered multiple discounts within the same product line, whereas the bid called for a single discount. The Department accepted the GLOBAL and FREBON bids. The Department rejected TRI's bid with a discount of 29.4 percent because TRI did not supply, at a discount, the complete, unaltered manufacturer's (Tandberg) price list with the bid offering all of the videoconferencing equipment and products manufactured by Tandberg, i.e., the twenty-two (22) pages offered by FREBON. This was the sole reason given by the Department for finding TRI's bid to be non-responsive. TRI's bid complied with all the other technical requirements required of the ITB. TRI filed a timely notice of protest, followed by a formal petition, challenging the Department's intended action to award the bid the FREBON and finding TRI's bid non-responsive. The Second Bid Tabulation Posting Unknown to TRI, on August 1, 2000, the Department posted a second bid tabulation involving the same bid and the same vendors. During the interval between the first and the second postings, the Department re-reviewed the bids. In the second posting, the Department again noticed its intent to award the contract to FREBON as an "SBN" i.e., "single bid negotiated," having determined that FREBON was the only responsive bidder. This was the only factor considered by the Department. In fact, the Department acknowledged that the products were available from multiple sources. Also, this bid was not an "exceptional purchase." Aside from the reference to "single bid negotiated" in the second tabulation, there is no written explanation for the Department's decision. See Section 287.057(4), Florida Statutes (". . . The agency shall document the reasons that such action [negotiate if less than two responsive bids are received] is in the best interest of the state in lieu of resoliciting competitive sealed bids. . . ."); Florida Administrative Code Rule 60A-1.002(5)(requiring, in part, the agency to document the conditions and circumstances when less than two (2) responsive bids are received). The Department changed its mind about the responsiveness of the GLOBAL bid and found GLOBAL's bid to be non-responsive on the ground that GLOBAL did not supply the complete manufacturer's price sheet with the bid. Mr. Hinson said that DIGITAL's bid was rejected on the same ground, although there is no documentation to support this testimony. The Department did not furnish TRI with a copy of the second posting nor notify TRI of the posting because the Department felt, pursuant to an unwritten policy, that TRI was not adversely affected by the decision, because the Department previously found TRI's bid non-responsive. FREBON and GLOBAL were notified of the second posting pursuant to the same policy. Resolution of the Conflict Between TRI and the Department It is undisputed that FREBON offered a discount for the entire product line price list for all of the "Business Solutions" and "Applications" products manufactured by Tandberg. The price lists include, among other products, Tandberg health care and education products. Conversely, TRI offered a discount based on a complete, unaltered price list for all of the videoconferencing systems manufactured by Tandberg, and, from a systems standpoint, all of the "Business Solutions" products sold by Tandberg. Specifically, TRI offered a discount for all of the desktop, set-top, and room systems manufactured by Tandberg. The resolution of this matter is not without some difficulty. We have heard from only one (1) vendor, TRI. All of the vendors offered different discounts for various products manufactured by Tandberg and no two vendors furnished the same Tandberg price list for the same products, although there was some overlap among the vendors. Yet no one, including TRI and the Department, suggests that the ITB was ambiguous or not clearly understood. Nonetheless, the ITB is not a model of clarity and, on this record, the ITB did not convey the intent of the Department expressed during the hearing. Notwithstanding the Department's expression of intent articulated during the final hearing, a plain reading of the entire ITB leads to several conflicting conclusions. The stated material objective of the ITB is to establish a contract for the purchase, installation, and maintenance of video teleconferencing systems, not video teleconferencing equipment, although the bid title says otherwise, and the purpose of the bid is to establish a contract for the purchase of video teleconferencing equipment. Another objective required each vendor to offer the complete line of videoconferencing products to configure desktop and/or room videoconferencing systems. Further, each vendor was required to offer a percentage discount for the entire Tandberg line of videoconferencing equipment. Stated differently within the ITB, the award is made by manufacturer's products, based on the highest discount given from the manufacturer's list price sheet for each item. But which item? The terms "videoconferencing systems" and "videoconferencing equipment" are used interchangeably in the ITB. The specifications were written specifically for two (2) categories of equipment, material here, videoconferencing systems, which include, set-top, desktop, and room systems, the only "systems" discussed within the four (4) corners of the ITB. The "systems" products offered by TRI, for a discount, are the only desktop, set-top, and room systems manufactured by Tandberg, and, from a systems standpoint, are the only videoconferencing systems that Tandberg manufactures. Thus, it follows that TRI provided the Department with a discount for the complete, unaltered list price sheet for these Tandberg products. While a decision to award the contract to TRI is contrary to the Department's intent expressed in the final hearing through its representatives, it is consistent with the ITB. The Manufacturer's Certificate A special condition of the ITB required each bidder to furnish a manufacturer's certificate, which certifies that a bidder is authorized to sell the manufacturer's equipment in the State of Florida. Mr. Hinson was advised by Mr. Grace of Tandberg that as of June 14, 2000, FREBON was authorized to sell and service Tandberg "Application" products, i.e., Tandberg's health care and education series products, only to the federal government in the State of Florida, and not to state governments, including the State of Florida. However, the Department accepted FREBON's certificate based solely on the representations made by Tandberg regarding FREBON's authorization. The Department feels it is unnecessary to investigate the veracity of a manufacturer's certificate because the Department can pursue a remedy against the vendor, here FREBON, if the vendor is not authorized after the contract is awarded. When he signed the manufacturer's certificates for the three (3) vendors, including FREBON, Mr. Grace meant the vendors were authorized resellers of Tandberg's products. Mr. Grace sent a memorandum of June 9, 2000, to any vendor who sent him the State of Florida's manufacturer's certificate for signature authorizing them to participate in the bid. Mr. Grace explained in his memorandum and during deposition, that authorization to act as an "Applications" dealer did not allow the vendor to sell "Business Solutions" products and vice-versa. For example, FREBON was limited to selling the Tandberg "Business Solution" products to the State of Florida and could not sell the Tandberg health care and intern products or education and tutor products to the State of Florida. Tandberg is in the process of discussing with FREBON to expand their capabilities of selling the "Application" products. Mr. Grace would discuss additional authorization with any vendor who wins the bid. Mr. Grace received and signed manufacturer's certificates for TRI, FREBON, and DIGITAL, because they were "authorized resellers of Tandberg's product that was being asked for in the statement of the work," i.e., for the "Business Solution" products that, in his judgment, the Department was requesting in the bid, and he "would sign them again under that" premise. TRI and DIGITAL are authorized to sell Tandberg's "Business Solution" and "Applications" products to the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order and award the contract to TRI because TRI offered the lowest discount for the required Tandberg products. If the Department declines to award the contract to TRI, it is further recommended that the Department re-bid the contract because an award to FREBON cannot be justified as a "single bid negotiated." DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 14th day of December, 2000. COPIES FURNISHED: F. Alan Cummings, Esquire Daniel Te Young, Esquire Cummings & Thomas, P.A. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Terry A. Stepp, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996.
Conclusions Having considered the MEDIATED STIPULATION, attached hereto as Attachment 1, the City of Tallahassee Planning Commission hereby adopts the MEDIATED STIPULATION as its Final Order in this matter and hereby approves Southeastern Tower Associates, Inc.’s Revised Type B Site Plan Application as set forth in the MEDIATED STIPULATION. th DONE AND ORDERED this _/2” day of August, 2009. Maribel Nicholson-Choice, Chairperson Tallahassee-Leon County Planning Commission , City Hall 300 South Adams Street Tallahassee, Florida 32301-1731 CERTIFICATE OF FILING AND CERTIFICATE OF SERVICE I hereby certify that this Final Order was filed jn the Office of the Clerk of the Planning Commission and that a copy was sent this (3 day of August, 2009; and a copy has been furnished by U. S. Mail to Linda Hudson, Assistant City Attorney, City Attorney's Office, City Hall, 300 S. Adams Street, Tallahassee, Florida, 32301; and D. Kent Safriet, Esq., Hopping, Green & Sams, P. O. Box 6526, Tallahassee, Florida, 32314, this Be day of August, 2009. Russell Snyde Planning Commission Clerk Tallahassee - Leon County Planning Commission City Hall 300 S. Adams Street Tallahassee, Florida 32301-1731 TLPC\Kaufman Final Order ATTACHMENT 1 STATE OF FLORIDA . DIVISION OF ADMINISTRATIVE HEARINGS. IT AD ROGER and JAN KAUFMAN, JOHN T. and JAN GARDNER, and WILLIAM B. GRAHAM, Petitioners, “vs. DOAH Case No. 09-1342 : Planning Comm’n Case No. TSP080075 CITY OF TALLAHASSEE and SOUTHEASTERN TOWER ASSOCIATES, INC., Respondents. / MEDIATED STIPULATION Pursuant to Section 2-138, Tallahassee Land Development Code (LDC), by and through undersigned counsel, Petitioners and Respondent, Southeastern Tower Associates, Inc., attended an informal mediation session. As a result of the mediation, the parties were able to settle their dispute as follows:
Findings Of Fact By Invitation to Bid for Existing Facilities, Lease Number 730:0181 (ITB), Respondent invited interested persons to submit bids for the lease of office space in Naples. The ITB requires the bidder to submit various documentation with the bid. The ITB states: "In order for a bid to be accepted, the items 1 through 8 must be included in the bid proposal." Items 4 demands: "Floor Plan showing present layout with dimensions. See paragraph 9b of Bid Submittal Form." Item 5 requires "Square footage calculations. See paragraph 9c of Bid Submittal Form." The ITB adds: "Items 9 through 17 must be included, if applicable." Item 12 is "Authorization for corporation to conduct business in Florida." Item 13 is a "Certification Letter from an HVAC maintenance contractor on age and condition of system." The ITB includes a Bid Submittal Form in blank, which each bidder was to complete in order to submit a bid. Paragraph 1 of the Bid Submittal Form states: Net square footage required: 6,442+ 3 percent, (acceptable range 6,442 to 6,635 square feet) measured in accordance with the Standard Method of Space Measurement (Attachment A). Note: Rest rooms and mechanical rooms are not included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet proposed . (Space offered must be within the 3+ percent required.) Paragraphs 9b and 9c of the Bid Submittal Form provide: As part of the bid submittal, bidders are to provide: b) A scaled (1/16" or 1/8" or 1/4" = 1'0" preliminary floor plan showing present configurations with measurements. The final floor plan will be as described in the specifications. c) A scaled site layout showing present location of building(s), location, configura- tion and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department and Lessor, so as to best meet the needs of the Department. In response to the ITB Petitioner timely submitted a bid for 6635 net rentable square feet. Petitioner's bid contained all required scaled plans. In response to Item 13 Petitioner's bid stated that all air conditioning units would be replaced with specified units, thus rendering Item 13 inapplicable. Respondent determined that Petitioner's bid was responsive and conceded the same at the hearing. Respondent correctly characterized as a minor irregularity the omission of documentation of Petitioner's corporate status because the omission gave Petitioner absolutely no competitive advantage. The only other bid submitted in response to the ITB was from Gulf Atlantic, which was for office space in the vicinity of the office space bid by Petitioner. Respondent also determined the timely submitted Gulf Atlantic bid to be responsive. Although charging more rent than the rent charged in Petitioner's bid, the Gulf Atlantic bid narrowly defeated Petitioner's bid in the evaluation process by 10.5 points out of a total of 377.5 points. Accepting the recommendation of the evaluators, Respondent published its notice of intent to award the bid to Gulf Atlantic, and Petitioner timely filed its notice of intent to protest and written protest. The Gulf Atlantic bid was for "+/-6,442" square feet. The attached floor plans are not correctly scaled. Careful analysis of the floor plans reveals that the actual square footage of the bid space is well under 6442 square feet. As confirmed by Gulf Atlantic's representative on the morning of the hearing, the Gulf Atlantic bid is for 5757.6 net rentable square feet. The Gulf Atlantic bid also lacks the required HVAC certification. The shortage of nearly 700 square feet of office space and the absence of an HVAC certification letter are material variances from the ITB. Both items confer upon Gulf Atlantic substantial competitive advantages by allowing it to bid substantially less office space than required of other bidders and allowing it to ignore the requirement of a representation as to the working condition of the HVAC system. These material variances render the Gulf Atlantic bid unresponsive.
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order rejecting the bid of Gulf Atlantic as nonresponsive and awarding the lease contract to Petitioner based on its bid. ENTERED on December 20, 1995, in Tallahassee, Florida. ROBERT E. MEALE, 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 December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1 (first two sentences): adopted or adopted in substance. 1: (remainder): rejected as irrelevant. 2: adopted or adopted in substance. 3: rejected as irrelevant. 4: adopted or adopted in substance. 5: adopted or adopted in substance, except as to dishonest. 6 (first two and fourth sentences): adopted or adopted in substance. 6 (third sentence): rejected as unsupported by the appropriate weight of the evidence as to intentional disregard of the minus sign. 7: adopted or adopted in substance. 8-16: rejected as subordinate. 17: adopted or adopted in substance with a further reduction for mechanical space. 18: rejected as subordinate. 19-20: adopted or adopted in substance, except as to dishonest and with the addition of illegal. 21-22: rejected as subordinate. 23-26: rejected as unnecessary. 27-32: adopted or adopted in substance. 33-45: rejected as unnecessary. 46: rejected as repetitious. 47: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1 (first sentence): adopted or adopted in substance. 1 (remainder): rejected as irrelevant. 2-6 (first sentence): rejected as unnecessary. 6 (second sentence)-9: adopted or adopted in substance. 10(a): adopted or adopted in substance as to Petitioner; rejected as unsupported by the appropriate weight of the evidence as to Gulf Atlantic. 10(b) (first sentence): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. 10(b) (second sentence): rejected as unsupported by the appropriate weight of the evidence; the determination that the Gulf Atlantic bid was responsive was illegal. 11(a) (first sentence): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. The same ruling applies to the third sentence insofar as it applies to Gulf Atlantic; the omission of an HVAC certification from the Gulf Atlantic bid was not a minor irregularity. 11(a) (remainder except for third sentence as to Gulf Atlantic): adopted or adopted in substance. 11(b): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. 12-13 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 13 (remainder)-14: rejected as unnecessary. The only determination by Respondent of the Gulf Atlantic bid that is crucial to this recommended order is the illegal determination that the Gulf Atlantic bid was responsive. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Rebecca A. O'Hara G. Steven Pfeiffer Apgar, Pelham & Pfeiffer 909 East Park Avenue Tallahassee, FL 32301 Tom Barnhart Assistant General Counsel Office of General Counsel P.O. Box 6668 Tallahassee, FL 32314-6668
The Issue The issue to be determined in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should certify the Polk 2-5 Combined Cycle Conversion Project (“Project”) of Tampa Electric Company ("TEC"), including its associated electrical transmission lines, subject to the proposed Conditions of Certification.
Findings Of Fact The parties stipulated there are no disputed issues of fact. TEC is an investor-owned electric utility regulated by the Florida Public Service Commission. It is headquartered in Tampa and has supplied electricity to customers in the Tampa Bay area since 1899. TEC's electric service territory covers approximately 2,000 square miles and includes all of Hillsborough County and portions of Polk, Pasco, and Pinellas Counties. TEC has five generating stations, Big Bend, HL Culbreath Bayside, JH Phillips, Polk Power Station, and Partnership Station. The Project is proposed for the Polk Power Station. Existing Facilities The Polk Power Station was certified pursuant to the Power Plant Siting Act in January 1994. It is located in southwest Polk County, 17 miles south of the City of Lakeland and 28 miles southeast of the City of Tampa. The original site consists of 4,348 acres bordered by the Hillsborough County line on the west; County Road 663 (Fort Green Road) on the east; County Road 630, Bethlehem Road, and Albritton Road on the north; and State Road 674 and several former phosphate clay settling ponds on the south. The Polk Power Station has five electric generating units and associated facilities. Polk Unit 1 is 260 megawatt integrated gasification combined cycle facility fired with synthesis gas or “syngas” produced by gasifying coal and other solid fuels. Polk Units 2 through 5 are 165 megawatt simple cycle combustion turbine generators fueled primarily with natural gas. Support facilities at the Polk Power Station include a 755-acre cooling reservoir, oxygen blown gasifier, air separation unit, sulfuric acid plant, slag byproduct storage area, and switchyard. The station is served by four 230 kilovolt (“kV”) transmission circuits, a railroad line, and a natural gas pipeline. Water is supplied from four onsite groundwater wells for the cooling water reservoir and other plant processes. Other existing facilities include an administration building, control room, warehouse, and construction management building. The Proposed Project Need On January 8, 2013, the Florida Public Service Commission issued its Final Order Granting Certification of Need for Polk 2-5 Combined Cycle Conversion. The Commission determined that the most cost effective and reliable alternative to meet future power needs is the construction of the Project at the Polk Power Station. The Commission's Final Order is TEC/Department Joint Exhibit 2. Among other findings, the Commission determined that the Project would improve fuel diversity and supply reliability, incorporate renewable energy and conservation factors, and is needed to maintain electric system reliability and integrity. Power Generation The Project involves the conversion of the four existing simple cycle combustion turbine generator units to combined cycle operation. The Project would be a four-on-one combined cycle unit consisting of the four existing combustion turbine generators, each combined with a new heat recovery steam generator, and a new steam turbine generator. The Project would achieve improved efficiency in electrical power generation. When operated in a simple cycle mode, a combustion turbine generator releases hot gases to the atmosphere. In the proposed combined cycle configuration, this exhaust heat would be routed to the heat recovery steam generators and the steam produced by the heat recovery generators would be routed to the new steam turbine generator to produce additional electricity. The Project is designed to allow the combustion turbine generators to be operated in simple cycle mode when the steam turbine generator is not in service. The combustion turbine generators may also be operated in simple cycle mode to meet peak power demands. The conversion would increase the nominal net generating capacity of the four existing generators from 660 megawatts to 1,160 megawatts. Total capacity for the Polk Power Station would be increased from 1,150 megawatts to 1,420 megawatts. The proposed generating facilities would be state-of- the-art, incorporating improvements in technology that have occurred over the past 20 years. They are designed by Black & Veatch, an internationally-recognized engineering firm with significant experience in designing similar facilities. Fuels The four combustion turbine generators would be fired with natural gas as the primary fuel. Ultra-low-sulfur diesel fuel would be the backup fuel. The four heat recovery steam generators would have natural-gas-fired duct burners for peaking operations. The existing onsite natural gas pipeline would provide the natural gas for the Project and the backup ultra-low-sulfur diesel fuel would be stored in existing onsite fuel storage facilities. Water Use Groundwater withdrawals from four wells are authorized by the current Conditions of Certification for 4.3 million gallons per day (“mgd”) on an annual average and 7.6 mgd on a peak monthly average. The Project will require additional water for cooling and plant process water uses. To minimize use of groundwater, TEC would treat and reuse 5.7 mgd of treated reclaimed water from the City of Lakeland. The treated reclaimed water would primarily be used to supply the makeup water for the proposed new cooling tower and the existing 755-acre cooling reservoir, as well as some process water needs. The cooling reservoir would be used for condenser cooling purposes. The new six-cell mechanical draft cooling tower would provide cooling for the Project’s auxiliary systems, which would be modified to use the new cooling tower instead of the reservoir. The reclaimed water would be initially provided by the City of Lakeland through a 15-mile pipeline. Later, reclaimed water would be provided by the City of Mulberry and Polk County. The Project systems are designed to maximize water reuse and recycling to reduce groundwater consumption. However, TEC requests that the maximum groundwater withdrawals currently authorized -- 4.3 mgd on an annual average and 7.6 mgd on a peak monthly basis –- be maintained in this certification to ensure that TEC can reliably and safely operate the facilities and manage water quality and levels in the cooling reservoir during extended periods of low rainfall conditions and in the event there is an interruption in the delivery of reclaimed water. The Project’s proposed water uses comply with all applicable agency requirements. Stormwater and Wastewater Discharges Stormwater and wastewater treatment systems are already in use at the Polk Power Station. These systems would be used for the Project facilities. The proposed facilities will not significantly affect the quantity or quality of stormwater runoff at the Polk Power Station. The current wastewater streams include runoff from industrial areas and process wastewaters. Wastewaters would continue to be collected and treated by the onsite industrial wastewater systems, including the equalization basin, neutralization basin, filtration system, and oil/water separator, and then discharged to the cooling water reservoir. With the addition of the Project, cooling water blowdown from the new cooling tower and treated reclaimed water will be introduced to the cooling reservoir. TEC has a permit for underground injection control wells which it plans to test for disposal of nonhazardous wastewater such as reverse osmosis reject water from the reclaimed water treatment process. The Project’s stormwater and wastewater discharges would comply with all applicable agency requirements. Air Quality Impacts Construction of the Project facilities at the Polk Power Station would generate fugitive dust emissions. These would be controlled by dust suppression control measures such as watering. The vehicles used by construction workers would release nitrogen oxide, carbon monoxide, and other fuel combustion- related air pollutants. These kinds of emissions from construction equipment would be minimized through the use of ultra-low-sulfur-diesel fuel in various diesel engines. Even under worst-case conditions, the air quality impacts caused by construction activities would be minimal, temporary, and limited to the construction site. The Project qualifies as a major modification to an existing major source. Air quality impacts from plant operations would be primarily nitrogen oxide, sulfur dioxide, and carbon monoxide emissions from the four combined cycle units, particulate emissions from the cooling tower, and various combustion emissions from operation of the emergency diesel generator. Air quality analyses were performed for nitrogen oxides, sulfur dioxide, particulates, and carbon monoxide. The dispersion modeling analyses demonstrate that the Project’s air quality impacts would not exceed the applicable regulatory limits and would not cause or contribute to an exceedance of any Prevention of Significant Deterioration Increment or National Ambient Air Quality Standard. For certain air emissions, Best Available Control Technology ("BACT") is required. BACT controls for nitrogen oxide would include the use of dry, low-nitrogen-oxide burners when firing natural gas and water injection when firing ultra- low-sulfur diesel fuel, and the installation of selective catalytic reduction technologies for the combined cycle combustion turbines. For sulfur dioxide emissions and emissions of sulfuric acid mist, BACT controls would include the use of low-sulfur natural gas as a primary fuel and ultra-low-sulfur diesel fuel as a backup fuel. For carbon monoxide and volatile organic compounds, BACT calls for good combustion design and operation. BACT for combustion particulates would be the use of low-ash natural gas as a primary fuel and ultra-low-sulfur diesel fuel as a backup fuel. For the emergency diesel engine, proposed BACT for all pollutants would be compliance with the applicable Standards of Performance for Stationary Combustion Ignition Internal Combustion Engines, which are federal standards that have been adopted by the Department. Proposed BACT for particulate emissions from the cooling tower is the use of high efficiency drift eliminators. The proposed air quality control technology for the Project and the expected emissions from the Project’s construction and operation would comply with all applicable agency requirements. Transmission Lines and Corridors The Project includes two new transmission line corridors. The proposed “Polk-Pebbledale Corridor” is a 5.5-mile, single-circuit 250 kV transmission line from the Polk Power Station north to the Pebbledale substation in Polk County. The proposed “Polk-Fishhawk Corridor” would be a single-circuit 250 kV transmission line running west from the Polk Power Station to the Mines substation near the intersection of State Road 674 and County Road 39 in Hillsborough County; from there, north and then west again to connect to a new Aspen switching station to be located near the intersection of County Road 672 and Balm-Boyette Road; and from the Aspen station, two separate 230kV transmission lines would run northeast to the existing Fishhawk substation near the intersection of Fishhawk Boulevard and Boyette Road; a total length of 27 miles. TEC exercised its option under section 403.5064(1)(b), Florida Statutes, to allow parties to file alternate transmission line corridors. No alternate corridors were filed or reviewed in this proceeding. TEC used a multidisciplinary team to evaluate alternative corridors for the new transmission lines. The team conducted initial data collection, prepared regional screening maps, identified alternate route segments, developed evaluation criteria, evaluated the routes, and selected the preferred routes. Public participation was a part of this effort. A regional screening map was created to identify existing infrastructure, roads, railroads, rivers and other water bodies, and siting constraints within the study area. TEC has existing transmission line rights-of-way in much of the study area, which together with public road rights-of-way provided co- location opportunities. The Polk-Pebbledale Corridor runs across former phosphate mining lands and follows roads and existing transmission line corridors to a point south of the town of Bradley Junction where it turns to the northeast and follows a transmission line through reclaimed phosphate lands to the intersection with another existing transmission line. In this certification proceeding, no party or non-party expressed opposition to the Polk-Pebbledale transmission line corridor. The Polk-Fishhawk Corridor runs across former and active phosphate mining lands, along road rights-of-way, and agricultural lands. As it approaches the Fishhawk substation, however, it passes through a residential development, referred to as the Fishhawk Community. The portion of the corridor that runs through the Fishhawk Community follows an existing TEC-owned transmission line right-of-way. No developer, agricultural operator, commercial entity, agency, or local government expressed opposition to the Polk to Fishhawk transmission line corridor, but residents of the Fishhawk Community testified in opposition to the corridor at the public hearing held in the Fishhawk community center. Their testimony at the public hearing is discussed later in this Recommended Order. The proposed transmission lines would be installed on steel poles embedded in the ground. Guy wires are generally not needed except where a transmission line makes a large angle turn or guy wires are otherwise necessary for safety and sound engineering. Pole heights would vary from 80 to 135 feet. The typical span length between poles would be 500 to 700 feet, but it can range up to 1,000 feet, when necessary to avoid natural or manmade obstacles or other siting constraints. The corridors are wider than the rights-of-way that will ultimately be determined in order to allow for flexibility in the final selection of the rights-of-way. The proposed rights-of-way would be reviewed by the agencies to insure compliance with the Conditions of Certification. Each transmission line would be designed, constructed, operated, and maintained in compliance with good engineering practices and all applicable codes, standards, and industry guidelines, including the National Electric Safety Code, the North American Electric Reliability Corporation, the American Society of Civil Engineers, requirements of the Florida Public Service Commission and the Federal Energy Regulatory Commission, the DOT Utility Accommodation Guide, applicable local and state government requirements, and TEC's internal design standards. TEC designs all of its 230 kV transmission lines to withstand a 130-mile-per-hour wind band, which exceeds the criteria in the National Electric Safety Code. Electric and Magnetic Fields The electric field produced by a transmission line is relatively constant over time. The magnetic field fluctuates over time depending on the load on the line. Electric and magnetic fields have been calculated for each of the configurations that may be used for the Project, based on the maximum requested voltage and current. The maximum expected levels for the electric and magnetic fields are within the limits in Florida Administrative Code Chapter 62-814. Considerable scientific research has been conducted in the past 30 years to understand the potential health effects associated with electric and magnetic fields. There is general agreement among scientists in national and international health agencies that the available evidence does not show adverse health effects can occur from exposure to the electric and magnetic fields associated with transmission lines. The Department’s limits for electric and magnetic fields at the edge of a transmission line right-of-way are lower than the limits recommended by the World Health Organization. Noise Impacts The noise limits applicable to the Project are those contained in the Polk Land Development Code and the in the rules of the Environmental Protection Commission of Hillsborough County. The Polk County noise limits are 75 decibels, A-weighted measurement (“dBA”) from 7:00 a.m. to 9:00 p.m. for non- residential areas and 65 dBA from 7:00 a.m. to 9:00 p.m. for residential areas. The noise requirements applicable to transmission lines in Hillsborough County are 60 dBA from 7:00 a.m. to 10:00 p.m. and 55 dBA from 10:00 p.m. to 7:00 a.m. Noise levels measured at four locations in the vicinity of the Project site varied between 41.9 and 51.1 dBA. Offsite noise levels during construction of Project facilities at the power station would be minimal because of the distance from the construction area to the site boundaries. Noise levels at the power station during operation are not expected to differ significantly from existing levels. Audible noise associated with transmission lines is usually associated with “corona,” which is a phenomenon that occurs when there is an irregularity on the surface of the conductors, such as water droplets or other significant particles. If the noise occurs during a rainstorm it is usually masked by the noise of the rain. At other times, corona noise will often be masked by other outdoor noises. Noise calculations were conducted for the proposed transmission lines and ranged from 32.0 to 45.2 dBA. These levels do not exceed the applicable limits. Wetlands and Terrestrial Ecology The areas proposed for the Project’s generating and associated facilities have been altered by the construction and operation of the Polk Power Station. These areas are also surrounded by lands altered by phosphate mining and reclamation. Wildlife habitats have already been destroyed, altered, or diminished by these activities and no longer have high functional values. Construction activities at the power plant site would not disturb any native or reclaimed wetland or upland habitats. Wildlife species expected to be found onsite would be common species for the region. Only two listed species of special concern were documented at the power station, the American Alligator and Tricolored Heron. They are both found in the reclaimed wetland west of the construction area and would not be affected. Impacts to other wildlife caused by construction at the Polk Power Station would be temporary and insignificant. There are no known threatened or endangered plant species at the Polk Power Station. No reclaimed or natural upland or wetland habitats are proposed to be affected. Wildlife habitats along the proposed transmission line corridors includes pine flat woods, mixed forested uplands, and various wetlands, including cypress forests, mixed hardwood swamps, and marshes. Surrounding land covers are dominated by current or former phosphate mining, farmsteads, or landscaped residential properties. The Balm-Boyette Scrub Preserve, Little Manatee River, Hurrah Creek, Fishhawk Creek, and Little Fishhawk Creek provide the best wildlife habitats along the transmission line corridors, but the corridors would cross these areas where there are already existing transmission line rights-of-way or roads. Wildlife found along the corridors are species commonly found in the region. No listed species are known to occur. Construction and maintenance of the transmission lines within the corridors would not significantly impact the habitats of fish and wildlife found in these areas. Impacts to vegetation along the transmission line corridors would be minimized by siting the rights-of-way within the most disturbed areas or on existing road and transmission line rights-of-way. TEC would span all open waters such as streams and tributaries. For smaller water crossings and wetlands, the facilities would be co-located with existing linear facilities to minimize impacts. Restrictive clearing practices on forested wetlands would be utilized, removing vegetation selectively. Impacts from filling would be avoided or minimized to the greatest extent practicable through a careful alignment of the transmission line rights-of-way and through the choice of span distances between structures. Where wetland impacts cannot be avoided, the impacts would be minimized and mitigation would be provided. Prior to the final selection of rights-of-way and the beginning of construction, surveys would be conducted to determine the presence of protected plant and animal species and the results would be shared with the FWC to determine if mitigation may be required in accordance with Conditions of Certification. Archeological and Historic Sites When the Polk Power Station was first certified and subsequently, archeological surveys were conducted to determine the presence of cultural and historical resources of significance. No such resources were identified. Cultural and historical resources in the study area for the transmission line corridors were evaluated during the corridor selection process. All National Register of Historic Places sites and districts as well as other known cultural resources were mapped and candidate corridors were laid out to avoid those resources. Corridors were laid out to co-locate with other transmission lines and linear facilities that have already disturbed the land to reduce the potential for new disturbances to cultural resources. After the rights-of-way within the corridors have been determined, cultural resource surveys would be conducted to identify the location of any archeological or historical resources and determine potential impacts whether they can be avoided. The surveys would be submitted to the Division of Natural Resources for its review and consideration. Transportation Impacts No additional transportation impacts are expected from the operation of the Project because there would be no addition to the current Polk Power Station staff of 78 employees to operate all facilities. The construction phase would generate 357 daily trips by construction workers and 50 additional delivery trips. The trip distribution per day is expected to be 228 northbound trips on State Road 37, 82 southbound trips on State Road 37, 75 northbound trips on Fort Green Road, and 22 southbound trips on Fort Green Road. Even at the peak of construction activities, the surrounding roadway network is expected to operate at acceptable levels of service. Land Use Compatibility The Project facilities would be located within the existing power station site, which is the logical and efficient location for the Project. There are no conflicting land uses in the vicinity of the Project site. Most of the land uses along the corridors are former and active phosphate mining lands, undeveloped lands, agriculture, and rural residences. The key exception is the segment of the Polk-Fishhawk Corridor that runs through the developed Fishhawk Community, which is a suburban residential area. Transmission lines of the types proposed are frequently located in proximity to all of these affected land uses, including the suburban residential areas. It is officially recognized that many people, if given a choice, would prefer not to have high voltage transmission lines near their homes, primarily based on aesthetic considerations. However, it is also officially recognized that many people are willing to live near transmission lines. Until there is a practical alternative to above-ground transmission lines, they will have to be located in developed areas in order to supply electricity to residences. The proposed transmission lines are not incompatible with residential uses. Polk County and Hillsborough County do not oppose the Project on any basis, including land use compatibility. The Project is consistent with the comprehensive plans and the land development regulations of these counties. Socioeconomic Impacts The Project would provide additional clean and reliable energy, additional jobs during construction, an increased property tax base, and increased economic activity in the form of purchases of goods and services. Local revenues from property taxes levied on the new plant facilities would primarily benefit Polk County. The estimated additional property tax revenue is between $6 million and $6.5 million annually. Significant revenues are also expected from sales taxes on goods purchased directly for the plant or indirectly from purchases of goods and services by the construction workers. Sales taxes are estimated to be $105,000 per year. Construction of the Project would employ an average of 250 workers, with a peak projected in 2015 of about 500 workers. Most of the construction workers would be drawn from an area within a commuting distance from the Project site. The construction payroll for the overall Project is expected to be $88 million and much of this would likely be spent in Polk County and the region. Site Boundaries TEC requests that the boundaries of the Polk Power Station site be reduced from 4,348 acres to 2,837 acres to reflect that the original certification required a donation of 1,511 acres to the Board of Trustees of the Internal Improvement Trust Fund as a wildlife management area and recreation area. The donation was completed in 2012. Construction Schedule Construction of the project is anticipated to begin in January 2014 and be completed in time to allow commercial operation in January 2017. Public Notice and Participation TEC engaged in extensive public outreach for the Project, using direct mail, a survey, public meetings, newspaper advertisements, a project webpage, a toll-free telephone number for information, and communications with agencies and public officials. TEC used two direct mailings, totaling over 10,000 letters in both English and Spanish. The letters were mailed to landowners and residents within one-quarter mile of the proposed transmission line corridors, all homeowners' associations within one mile, and all landowners and residents within three miles of the plant site boundaries. Three public meetings were held regarding the Project. The first meeting was held on April 10, 2012, at the Little Union Baptist Church. The second was on April 12, 2012, at the Fishhawk Fellowship Church. The third was on April 19, 2012, at the Wimauma Senior Center. TEC held meetings with county commissioners, mayors, state senators, and state representatives to inform them of the Project and the certification process. TEC representatives also met with developers in Hillsborough County who could be affected by the corridors to provide information and answer questions. Copies of the Application were available for inspection at the Polk County Library in Bartow and the John Germany Public Library in Tampa. A copy was also available for public review at TEC’s offices in Tampa. On October 24, 2012, public notice of the filing of the Application was published in The Tampa Tribune and The Ledger. On April 18, 2013, notice of the Certification Hearing was published in The Tampa Tribune and The Ledger and on April 19, 2013, in the Tampa Bay Times. When the certification hearing was rescheduled, TEC published notice of the rescheduling in The Tampa Tribune, The Ledger, and the Tampa Bay Times on June 16, 2013. The Department published notices of the Application, the certification hearing, the public testimony hearing, and rescheduling the certification hearing in the Florida Administrative Register. Hillsborough County published notice of the public testimony portion of the proceeding in The Tampa Tribune on June 19, 2013. Public Testimony A hearing was held in Lithia, Florida, on June 25, 2013, in the Fishhawk Community to provide members of the public who are not parties to the certification proceeding an opportunity to present sworn testimony concerning the transmission line portion of the Project. Twelve members of the public testified. Eight comment letters were received into the record as Public Testimony Composite Exhibit 1. A number of the residents expressed anger about what they perceived as the failure of the developer who sold them their homes, and TEC, to disclose to them that a transmission line might be constructed near their homes. As previously stated, the corridor is on property owned or controlled by TEC for the installation of transmission lines. The record evidence does not indicate any duty to disclose, any misrepresentation, or any obfuscation by TEC in this regard. If there was a failure to disclose or a misrepresentation by the developer, those are matters between the homeowners and the developer and beyond the scope of this proceeding. Several residents expressed concern about possible adverse health effects from exposure to electric and magnetic fields associated with the transmission lines. However, no speaker referred to personal knowledge or to any study results to support their comments on this subject. It is likely, therefore, that their concerns are based on rumors or speculation. As discussed above, independent scientists have not been able to substantiate the occurrence of adverse health effects from exposure to the electric and magnetic fields associated with transmission lines. There is a tennis court and there are nature trails underneath existing transmission lines located in another part of the Fishhawk Community, indicating that the fear of electrical and magnetic fields is not universal. Some residents urged that TEC be required to install the portion of the transmission line in the Fishhawk Community underground. There are substantial engineering difficulties associated with underground installation of high voltage transmission lines. TEC has never installed this type of transmission line underground. The cost for underground installation could be as much as 15 times greater than for overhead installation. Agency Reports Agency reports with proposed conditions of certification were submitted to the Department by SWFWMD, FWC, Florida Department of Transportation, Hillsborough County, and Hillsborough County Environmental Protection Commission. Agency Reports without recommended conditions of certification were submitted by the Florida Department of Economic Opportunity, Central Florida Regional Planning Council, Tampa Bay Regional Planning Council, and Polk County. The Department of State, Division of Historical Resources did not file an agency report, but recommended conditions in its Completeness Review. On January 28, 2013, The Department issued its Project Analysis Report for the transmission line portion of the Project, incorporating the reports of the reviewing agencies and proposing Conditions of Certification. On April 26, 2013, the Department issued its Project Analysis Report on the power plant and proposed Conditions of Certification. The Report was modified on May 21, 2013. No agency opposes certification of the Project. Conditions of Certification The Department recommends certification of the Project subject to the revised Conditions of Certification set forth in Department Exhibit 8, which supersedes all prior statements of conditions. The Conditions of Certification address numerous subjects and are designed to ensure that the construction and operation of the Project is protective of the public and the environment. The Conditions of Certification provide for post- certification reviews and investigations to confirm, for example, that sensitive areas will be avoided and that transmission lines structures will avoid or have minimal adverse impacts. TEC has agreed to construct, operate, and maintain the Project in compliance with the Conditions of Certification. No variances or exemptions from applicable state, regional, or local standards or ordinances have been requested or are needed for the construction, operation, and maintenance of the Project. Certification Considerations In determining whether TEC's application for the Project should be approved, approved with conditions, or denied, the Siting Board must determine whether, and the extent to which, the location, construction, and operation of the Project would: Provide reasonable assurance that the operational safeguards are technically sufficient for the public welfare and protection. Comply with applicable nonprocedural requirements of agencies. Be consistent with applicable local government comprehensive plans and land development regulations. Meet the electrical energy needs of the state in an orderly, reliable, and timely fashion. Effect a reasonable balance between the need for the facility as established pursuant to s. 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility. Minimize, through the use of reasonable and available methods, the adverse affects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Serve and protect the broad interests of the public. § 403.509(3), Fla. Stat. The evidence presented demonstrates that the location, construction, and operation of the Project would provide reasonable assurance that the operational safeguards are technically sufficient for the public welfare and protection. The evidence presented demonstrates that the location, construction, and operation of the Project would comply with applicable nonprocedural requirements of agencies. The evidence presented demonstrates that the location, construction, and operation of the Project would be consistent with applicable local comprehensive plans and land development regulations. The evidence presented demonstrates that the location, construction, and operation of the Project would meet the electric energy needs of the state in an orderly, reliable, and timely fashion. The evidence presented demonstrates that the location, construction, and operation of the Project would effect a reasonable balance between the need for the facility as established pursuant to section 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state. The evidence presented demonstrates that the location, construction, and operation of the Project would minimize, through the use of reasonable and available methods, the adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. The evidence presented demonstrates that the location, construction, and operation of the Project would serve and protect the broad interests of the public.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a final order: approving TEC's application for certification to construct, operate, and maintain the Polk 2-5 Combined Cycle Conversion Project, including its associated transmission lines, subject to the Conditions of Certification set forth in Department Exhibit 8; approving the increase in ultimate site capacity for the Polk Power Station site from the previously approved 1150 megawatts to 1420 megawatts; and modifying the Polk Power Station site boundaries from 4,348 acres to 2,837 acres, as depicted in TEC Exhibit 5. DONE AND ENTERED this 23rd day of August, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013. COPIES FURNISHED: Lawrence N. Curtin, Esquire Holland and Knight LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Toni Sturtevant, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Anthony Justin Pinzino, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Adam Teitzman, Esquire Florida Public Service Commission 2450 Shumard oak Boulevard Tallahassee, Florida 32399-0850 Michael S. Craig, Esquire Polk County Attorney's Office 330 West Church Street, Drawer AT01 Post Office Box 9005 Bartow, Florida 33831-9005 Marva M. Taylor, Esquire Hillsborough County Attorney`s Office 27th Floor 601 East Kennedy Boulevard Tampa, Florida 33602-4156 Richard Tschantz, Esquire Environmental Protection Commission of Hillsborough County 3629 Queen Palm Drive Tampa, Florida 33619 Patricia Anderson Department of Health Environmental Engineering 4042 Bald Cypress Way Tallahassee, Florida 32399-1742 Laura Kammerer Bureau of Historic Preservation R. A. Gray Building 500 South Bronough Tallahassee, Florida 32399 Manny L. Pumariega Tampa Bay Regional Planning Council Suite 100 4000 Gateway Center Boulevard Pinellas Park, Florida 33782 Patricia M. Steed Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830-3931 Forrest Watson Department of Agriculture and Consumer Services Division of Forestry 3125 Conner Boulevard Tallahassee, Florida 32399-1650 Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether a proposed amendment to Rule 12A-1.053(7), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority and/or is unconstitutional?
Findings Of Fact The Parties. Petitioner, Florida Cable Television Association (hereinafter referred to individually as the "Association"), is a voluntary association of franchised cable television operators in the State of Florida. The Association's membership is reflected on Joint Exhibit 7. Petitioner, Cablevision Industries of Central Florida, Inc. (hereinafter individually referred to as "Central"), and Petitioner, Cablevision Industries of Middle Florida, Inc. (hereinafter individually referred to as "Middle"), are franchised cable system operators in Orange County, Florida. Central and Middle are members of the Association. Central provides cable television services in the cities of Clermont, Edgewater, Groveland, Helen, Holly Hill of Lake County, Mascotte and Oak Hill, and the Town of Minneola. Central also provides services in the Winter Garden, Orange County, Florida, franchise area. Middle provides cable television services in the cities of Belle Glade, Live Oak, Pahokee, Palatka, South Bay and the Town of Interlachan. Middle also provides cable television services in the unincorporated areas of Bradford, Palm Beach and Putnam Counties. Middle also provides services in the MAGNA franchise area, an area of Orange County. The Respondent is the Florida Department of Revenue, an agency of the State of Florida. The Department is charged with responsibility for administering the State's revenue laws. See Section 213.05, Florida Statutes. The following facts concerning the Intervenor, BellSouth, were stipulated by the parties to be true: BellSouth is a corporation authorized to do business in Florida . . . . . . . . 5. . . . a) BellSouth is a utility service provider which owns utility or transmission poles and receives fees from others for the privilege of attaching wires and other equipment to those poles; and, b) BellSouth pays fees to others who own utility or transmission poles for the privilege of attaching wires and other equipment to those poles. . . . . Adoption of the Challenged Rule. On December 31, 1992, the Department caused to be published notice of its intent to amend Rule 12A-1.053, Florida Administrative Code. The notice was published in the Florida Administrative Weekly, Volume 18, No. 53, December 31, 1992 (hereinafter referred to as the "Notice"). See Joint Exhibit 1. On January 21, 1993, the Petitioners initiated a challenge to the proposed amendment of Rule 12A-1.053(7), Florida Administrative Code, by instituting a Section 120.54, Florida Statutes, proceeding. The Challenged Rule provides the following: The charge by the owner of a utility or transmission poles to anyone other than a utility service provider as the term "utility service" is defined in s. 203.012(9), Florida Statutes, for the privilege of attaching wires and other equipment thereto is taxable as provided in s. 212.031, Florida Statutes, as a license to use real property. Joint exhibit 1. The "specific authority" for the Challenged Rule cited by the Department in the Notice was Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes. The "law implemented" by the Challenged Rule cited by the Department in the Notice was Sections 212.02(20), 212.05(1)(b)(e), 212.06(1)(a)(b) and (2)(a), 212.08(4) and (7)(j), and 212.18(2), Florida Statutes, and Sections 13 and 14 of Chapter 92-319, Laws of Florida. The Taxable Event; Effect on the Petitioners. Typically, members of the Association, including Central and Middle, deliver cable television services in the State of Florida through wires and equipment attached to utility poles. Typically the wires are utilized by cable television providers to transmit audio and video signals to subscribers of the providers' services. Although cable television providers may own some poles and, in some instances, may install their own poles, most cable television providers, including Central and Middle, enter into agreements with owners of utility poles, such as electric and telephone providers, for the use of existing poles (hereinafter referred to as "Attachment Agreements"). See Joint Exhibits 2(a)- 1, 2(a)-2, 2(b)-1, 2(b)-2, 2(c)-1 and 2(c)-2, which are examples of Attachment Agreements. Pursuant to the Attachment Agreements, cable television providers agree to pay a fee to the owner of utility poles for the right to attach cable television wires and equipment to the poles. The fee is typically calculated based on the number of poles used each year. Pursuant to the Challenged Rule, members of the Association, and Central and Middle, will be required to pay sales and use tax on the charges they pay pursuant to Attachment Agreements they enter into. Utility Pole Characteristics. Utility poles to which cable television provider wires and equipment is attached are usually owned by utility service providers and are installed on public and private streets or rights-of-way. The underlying land and right-of- way may or may not be owned by the utility provider. Utility poles remain the property of the utility provider and do not become the property of the owner of the land or the right-of-way upon which the pole is located. Electric service provider utility poles are generally considered to be components of the "overhead electric distribution system," which consists primarily of the poles wires and transformers. The components are suppose to be designed and installed in accordance with the National Electric Safety Code. Poles installed pursuant to the National Electric Safety Code are to be installed in the ground and are anchored to the ground to insure that the pole remains in a vertical position. Anchoring may be secured by cement anchors and bolts embedded in concrete which is placed in the ground. Poles are installed and anchored to withstand the forces of nature. Generally, poles are installed to withstand winds of up to 150 miles per hour. In general, poles are intended to be installed permanently and, on average, have a useful life of twenty-five to thirty years. In practice, utility poles are sometimes replaced or moved. Poles become rotten and have to be replaced. Poles are also replaced when damaged. Poles are also removed and relocated for various reasons. Central and Middle were aware of approximately 200 utility pole changes during one year. In order to replace or move a utility pole, heavy equipment is required. Exemption for Utilities. Most poles to which cable television wires are attached are already being used by utilities for utility services. Pursuant to the Challenged Rule fees paid by "utility service providers" for the use of utility poles to attach wires and other equipment to utility poles are exempt from sales and use tax. The Department's exemption of utility service providers is based upon the provisions of Section 212.031(1)(a), Florida Statutes: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is: . . . . 5. A public or private street or right-of-way occupied or used by a utility for utility purposes. Currently only utilities and cable television providers enter into Attachment Agreements. Local Government Franchise Agreements. Central and Middle operate in their respective areas of the State of Florida pursuant to agreements with local governments (hereinafter referred to as "Franchise Agreements"), authorizing them to provide cable television services within the jurisdiction of the city or county with which the agreement has been entered into. See Joint exhibit 3. Franchise Agreements entered into by Central and Middle generally give them a nonexclusive right to provide cable television services in the areas they serve. Central and Middle both operate within areas located in Orange County, Florida. Orange County has enacted Chapter 12 of the Orange County Code, Community Antenna Television Systems; Cable Television, Etc. Joint exhibit 5a. Section 12-48 of the Orange County Code, provides, in part, the following: Payment to the grantor of franchise consideration. A cable operator shall pay to the county a franchise fee of five (5) percent of its gross annual revenues for each year of the term of the franchise. The franchise fee shall be in addition to all other taxes, fees and assessments which are required to be paid to the county, and which do not constitute a franchise fee under the Act. . . . . . . . Time of Payment. . . . . (3) Nothing in this subsection (b) shall limit the cable operator's liability to pay other applicable local, state or federal taxes, fees, charges or assessments. A fee (hereinafter referred to as a "Franchise Fee"), similar to that charged pursuant to Section 12-48 of the Orange County Code is imposed by Palm Beach and Hillsborough Counties. See Joint exhibits 5(b) and 5(c). Franchise Fees are paid by cable television providers for the right to serve a given community. Not all cable television service providers are required to pay Franchise Fees of 5 percent. Central and Middle report their gross income on a quarterly basis to Orange County for purposes of paying the Orange County Franchise Fee imposed by Section 12-48 of the Orange County Code. Central and Middle calculate and pay to Orange County a Franchise Fee of 5 percent of their annual gross income. The Orange County Franchise Fee is paid quarterly. See Joint exhibits 4(a) and 4(b). The Orange County Franchise Fee is imposed on all gross revenues of Central and Middle, i.e., installation charges, leases of remote and converter boxes, sale of program guides and advertising. Central and Middle have entered into Attachment Agreements to utilize utility poles located in Orange County. A fee is paid for the use of those poles pursuant to the Attachment Agreements. The State of Florida does not impose a Franchise Fee on cable television service providers in Florida. In addition to paying Franchise Fees, some cable television service providers, including Central and Middle, also pay sales taxes in the State of Florida. 47 U.S.C. Sections 521-559 (hereinafter referred to as the "Cable Act"), provides Federal regulations governing cable television systems operated in the United States. Rule 12A-1.046(4)(b), Florida Administrative Code. Rule 12A-1.046(4)(b), Florida Administrative Code, provides: (b) The charge by the owner of utility or transmission poles to others for the privilege of attaching wires or other equipment thereto is exempt as a service transaction. The provisions of Rule 12A-1.046(4)(b), Florida Administrative Code, are in conflict with the Challenged Rule. Rule 12A-1.046(4)(b), Florida Administrative Code, has not been amended or repealed by the Department. It is, therefore, a valid rule of the Department. The Department, after proposing to amend Rule 12A-1.046(4)(b), Florida Administrative Code, to eliminate the inconsistency with the Challenged Rule, decided to await the outcome of this case. Although a final decision has not been made, it is reasonable to conclude that the discrepancy between the Challenged Rule and Rule 12A-1.046(4)(b), Florida Administrative Code, will be eliminated if the validity of the Challenged Rule is ultimately upheld.
Findings Of Fact The School Board of Palm Beach County opened bids on August 9, 1989, which had been solicited in July 1989, for the purchase of a language laboratory, solicitation #SB 90-84F. The apparent low bidder was ASC Electronic, Inc. (ASC). The next lowest bidder was Mavco, Inc., d/b/a Miami Audio-Visual Company (Mavco). The other bidders were Florida State AV and Communications, Inc., and Stevens Learning Systems, Inc. The bid of ASC was $46,770.00, that of Mavco was $52,040.00. Mavco filed a protest in which it alleged that the bid by ASC was not responsive. After informal attempts to resolve the protest failed, Mavco filed a formal written protest of the school board's preliminary decision to award the bid to ASC. The timeliness of the protest has not been challenged. Mavco alleges that the equipment offered by ASC does not comply with paragraph 3F of the General Conditions of the invitation to bid, because the power supply for the language laboratory has not been approved by Underwriters Laboratories (UL). It was also alleged that the power supply is not fully insulated. The relevant provisions of the General conditions of the invitation to bid provide 1/ 3F) UNDERWRITERS' LABORATORIES: Unless otherwise stipulated in the bid, all manufactured and fabricated assemblies shall be U.L. listed or re-examination listing where such has been established by U.L. for item(s) offered and furnished. * * * 5. BRAND NAMES: Use of a brand name, trade name, make, model, manufacturer or vendor catalog number in specifications is for the purpose of establishing a grade or quality of material only. It is not the Board's intent to rule out other competition, therefore, the phase OR ACCEPTABLE EQUAL is added. However, if a product other than that specified is bid, it is the vendor's responsibility to submit with the bid brochures, samples and/or detailed specifications on item(s) bid. The Board shall be sole judge concerning the merits of bids submitted. Bidder shall indicate on the bid form the manufacturer's name and number if bidding other than the specified brands, and shall indicate ANY deviation from the specifications as listed. Other than specified items offered requires complete descriptive technical literature marked to indicate detail(s) conformance with specifications. * * * 22. SPECIFICATIONS: Any omissions of detail specifications stated herein that would render the materials/service from use as specified will not relieve the bidder from responsibility. * * * 26. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from the General Conditions shall have precedence. (all emphasis in original) The minimum technical specifications for the school board's solicitation begin at page 5 of the invitation to bid. Those for the main console are found at page 9; the first is that the language laboratory console shall have a "fully insulated UL Approved student power supply." The location of this specification is somewhat confusing, because the laboratory is divided into the main console for the instructor and student positions. The quoted specification requiring UL listing applies only to power supplies for student positions, not the console, and therefore appears to have been misplaced in the specifications. It is not clear that the student positions in the language lab need to have any power supply of their own. If they do, however, they must be fully insulated and UL Approved. The bid submitted by ASC states, at page 10, that the language laboratory it bid was its own model AS4M. Its bid package does not state that ASC bid a product which varied from the school board's technical specifications. Nothing in the invitation to bid requires the bidder to list or describe a specific power supply which will be provided as a component of the language laboratory console master desk or of the student positions. Mavco's own bid submission does not state whether its student power supply (if any) is UL Approved. After the school board had designated ASC as the apparent low bidder in its bid tabulation, the school board inquired about the Underwriters Laboratory approval status of the language laboratory ASC would provide. 2/ ASC responded on August l8, 1989, as follows: The only component that would normally require a UL listing is our internal power supply. Since our entire system operates on 24VAC, UL approval for other than the power supply is not required. The high-quality German manufactured power supply has a more stringent European International Standard for meeting the requirements of the Common Market than that required by UL. If however, a UL Approved power supply is requested, we will substitute a UL Approved power supply in our console. We, therefore, respectfully request that this letter be accepted as our certification that the power supply we will install will, in every way, meet or exceed UL requirements or, as directed by you, we will substitute a fully UL Approved power supply in our console. (emphasis original) After further correspondence, on August 25, 1989, ASC wrote to the school board a brief letter, which states We appreciate this opportunity to submit our UL Approved power supply LAMBDA Model L0S-Y- 24. The attached card indicates that UL #E45040 (M) shows that this power supply is listed by UL and is in compliance with their standards. By letter dated August 29, 1989, ASC proposed to use another power supply, from Acme Transformer, Inc. The power supply is obviously a necessary component of the entire language laboratory. It is not clear whether a separate power supply is a necessary part of the student positions on the model ASC; it appears that the only power supply is part of the master console. In the invitation to bid, the school board not only prescribed technical specifications, but also described the laboratory sought on its Bid Summary Sheet as the Tandberg Educational 15-10 language laboratory, although the board permitted a vendor to bid an equal product. The analysis of the Tandberg 15-10 language laboratory performed by the national sales manager of Tandberg Educational, Inc., shows that the Tandberg laboratory is not UL Approved in its entirety; its main console power supply is not UL Approved. Bidding a laboratory with no UL approval for the main console power supply is consistent with the board's technical specifications. Mavco lays great stress on the use of the word "substitute" in the August 18, 1989, letter from ASC to the school board. ASC may have intended to supply a power unit for the main console which was not UL Approved; under the technical specifications it was not obligated to provide an approved unit. The school board's purchasing department raised the UL Approval issue with ASC, which then committed to provide a UL Approved main power supply. Lack of UL Approval for the power supply ASC first intended to use is not an indication that that power supply was in any way inadequate. There is no proof in the record that the power supply which would have been provided would not have met UL standards, had it been tested. The use of the Tandberg language laboratory by the school board as its benchmark for grade or quality, which incorporates a power supply which is not UL Approved, shows that UL Approval of the main console power supply was not required.
Recommendation It is recommended that the bid protest filed by Miami Audio-Visual Company be rejected and the bid submitted by ASC Electronic be found responsive. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of November, 1989. WILLIAM R. DORSEY, JR. 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 16th, day of November, 1989.
The Issue The issue in this case is whether Respondent, while serving as Secretary of the Department of Juvenile Justice (DJJ), violated section 112.313(6), Florida Statutes (2007-2009),1/ by incurring excessive travel costs between St. Petersburg and Tallahassee, Florida, after receiving reasonable notice and admonition from the Governor's administration that the travel was excessive.
Findings Of Fact Mr. Peterman served as the Secretary of DJJ from February 17, 2008, until January 5, 2011. Prior to his appointment as Secretary of DJJ, Mr. Peterman served as a member of the Florida House of Representatives. During his appointment, Mr. Peterman maintained his primary residence in St. Petersburg, Florida, where his family resided, and he was the pastor of The Rock of Jesus Missionary Baptist Church. As pastor, Mr. Peterman was responsible for the general oversight of the church, preaching, counseling and ministering to the members of the church, and performing marriages, funerals, and other duties. In addition to his residence in St. Petersburg, Mr. Peterman maintained a separate residence in Tallahassee, Florida. As Secretary of DJJ, Mr. Peterman had an office in St. Petersburg (the Wildwood office) and an office in Tallahassee (the Tallahassee office). The Tallahassee office was considered headquarters for Mr. Peterman. Ms. Brown, his assistant, worked in the Wildwood office, and her duties included setting appointments for Mr. Peterman, scheduling, and maintaining Mr. Peterman's calendar. Mr. Peterman had a staff person in Tallahassee with similar duties. Mr. Peterman treated the Wildwood office as a satellite office for the Secretary of DJJ. He felt that he had the approval of the Governor's office to use such an arrangement; however, neither the Governor's Chief of Staff nor the Deputy Chief of Staff assigned to DJJ was aware of any approval by the Governor's office for a satellite. Both would have been aware if such approval had been given. As Secretary of DJJ, Mr. Peterman was assigned a fleet automobile and a gas card. Mr. Peterman was responsible for filling out the travel logs, which would show the date of the trip, the destination, mileage, and fuel charges. Driving a fleet car would be cheaper than flying. At the time Mr. Peterman was appointed as Secretary of DJJ, Mr. Eikenberg was the Governor's Chief of Staff. There were three Deputy Chiefs of Staff, who reported to Mr. Eikenberg. Each Deputy Chief of Staff was responsible for a portion of the agencies that reported to the Governor. Each Deputy Chief of Staff would monitor the actions of his or her assigned agencies and report to the Chief of Staff concerning those agencies. As Deputy Chief of Staff, Judge Rowe was assigned DJJ. While Judge Rowe was Deputy Chief of Staff, she counseled Mr. Peterman at least four or five times on his travel. She had concerns about his flying to St. Petersburg and the failure of his calendar to reflect a direct agency purpose on his frequent trips to St. Petersburg. Judge Rowe advised Mr. Peterman to use the most economical means of transportation when traveling to St. Petersburg, which was by automobile, and to make sure that his calendar reflected the activities in which he was engaged related to DJJ business. Mr. Peterman appeared to understand what Judge Rowe was conveying to him; however, Judge Rowe did not see any noticeable change in the pattern of his behavior. Judge Rowe left the Governor's office in August 2009. Mr. Peterman appointed Bonnie Roberts (Ms. Roberts) as the Chief of Staff of DJJ. She served in that position until March 2009. As Chief of Staff of DJJ, she acted as a liaison between the Deputy Chief of Staff of the Governor's Office and DJJ. She was responsible for the administrative functions at DJJ. In August 2008, Ms. Roberts along with the other senior management staff participated in a retreat in order to develop a policy for DJJ regarding restricting travel due to budgetary concerns. One of the issues discussed was that travel needed to be "mission critical." On January 29, 2009, Mr. Peterman issued a memorandum to the executive leadership team of DJJ concerning mission critical travel. The memorandum provided that all travel vouchers must contain an explanation describing how the travel activity was critical to the agency's mission. It further provided: Mission critical travel is considered necessary to perform job functions that if not conducted would have an adverse impact to the health, welfare, and safety of the youth in the Department's care and would interfere in the Department's ability to carry out its mission. Every effort must be made to ensure that travel: Is planned to maximize resources; Limits the need for overnight travel; Is necessary and appropriate with the needs of the position and job functions; and Utilizes teleconferencing and video conferencing technologies to the extent possible. On February 10, 2009, Mr. Peterman sent another memorandum revising the January 29, 2009, memorandum. The new memorandum identified mission critical travel and the approval process to be used for reimbursement for travel expenses. The new memorandum incorporated the definition of mission critical travel quoted above and also required that requests for reimbursement had to explain why the business for which the travel expense was incurred could not have been conducted by electronic means. Ms. Roberts became concerned about Mr. Peterman's travel between Tallahassee and the St. Petersburg-Tampa area. She discussed the issue with Judge Rowe, who told Ms. Roberts to counsel Mr. Peterman concerning his travel, particularly his air travel between Tallahassee and the St. Petersburg-Tampa area. She talked with Mr. Peterman and reminded him that he needed to restrict his air travel and take a car when traveling to and from the St. Petersburg-Tampa area. She advised Mr. Peterman that his frequent trips to St. Petersburg were causing low morale, because other employees' travel was being restricted. When Ms. Roberts resigned as Chief of Staff of DJJ, she was replaced by Kelly Layman (Ms. Layman). Ms. Roberts told Ms. Layman that Mr. Peterman's travel was an issue of concern with the Governor's office. Ms. Layman also became concerned about Mr. Peterman's frequent trips to St. Petersburg. His absences from Tallahassee were perceived by senior staff as a lack of leadership, thereby causing low morale. Ms. Layman also counseled Mr. Peterman concerning his travel to and from St. Petersburg. Mr. Peterman's mode of travel was switched primarily to automobile, but the frequency of travel did not diminish. Ms. Brown was responsible for keeping Mr. Peterman's calendar concerning his activities in the Wildwood office. The calendar reflected appointments or meetings in the St. Petersburg-Tampa area during the following days in 2008: April 24, May 23, June 6, June 13, June 27, August 7, August 14, September 18, September 25, October 17, October 30, December 4, and December 11. The calendar showed meetings and appointments in the St. Petersburg-Tampa area during the following days in 2009: January 15, January 29, February 2, February 6, February 13, March 13, March 19, March 26, May 18, June 2, August 6, August 31, September 9, September 10, September 11, September 23, September 25, September 28, October 1, October 13, October 16, November 6, November 9, November 10, November 13, November 18, December 4, December 11, and December 18. DATE TRAVEL[3/] MODE PURPOSE COST 2-18-08 TP-TL CAR R FIRST DAY ON JOB $29.24 2-20-08 TL-TP AIR TO JJ FOUNDATION $555.00 2-21-08 TP-TL AIR FROM JJ FOUNDATION 2-26-08 TP-TL AIR ADOLESCENCE CONFERENCE $245.50 2-29-08 TL-TP AIR "STATE BUSINESS" $560.00 The following is a summary of Mr. Peterman's state- paid travels between Tallahassee and the St. Petersburg-Tampa area during the years 2008 and 2009 based on the travel records that were admitted in evidence: 3-3-08 TP-TL AIR $560.00 3-6-08 TL-TP AIR DJJ WILDWOOD OFFICE $248.50 3-24-08 TL-SP CAR 3-27-08 TL-SP CAR 3-31-08 SP-TL CAR 4-23-08 TL-TP AIR BLUE COMMITTEE ROLL-OUT $469.00 FALKENBERG VISIT T.V. INTERVIEW 4-28-08 TP-TL AIR RETURN TO HEADQUARTERS 5-2-08 TL-TP AIR "AIRPORT DESTINATION" $469.00 5-4-08 TL-SP CAR 5-5-08 SP-TL CAR RETURN TO HEADQUARTERS 5-12-08 TL-SP CAR 5-14-08 SP-TL CAR 5-14-08 TL-TP AIR WORK IN DISTRICT OFFICE $221.50 5-19-08 TL-SP CAR 5-20-08 TL-TP AIR WORK IN DISTRICT OFFICE $234.50 5-21-08 SP-TL CAR 5-27-08 TP-TL AIR RETURN TO HEADQUARTERS $234.50 6-9-08 TP-TL R.CAR RETURN TO HEADQUARTERS $86.68 6-23-08 TL-TP R.CAR RETURN TO HEADQUARTERS $109.09 7-30-08 TP-TL AIR RETURN $248.50 8-7-08 TL-TP AIR MEETING AT DIST OFFICE $269.50 8-19-08 TP-TL AIR RETURN TO HEADQUARTERS $269.50 8-22-08 TL-TP AIR WORK IN WILDWOOD OFFICE $702.00 8-25-08 TP-TL AIR RETURN TO TALLAHASSEE 8-26-08 TL-TP AIR WORK IN WILDWOOD OFFICE $630.00 9-2-08 TP-TL AIR RETURN TO HEADQUARTERS 9-9-08 TP-TL AIR RETURN TO HEADQUARTERS $721.00 9-11-08 TL-TP AIR WORK IN WILDWOOD OFFICE 9-17-08 TL-TP AIR WORK IN WILDWOOD OFFICE $668.00 9-22-08 TP-TL AIR RETURN TO HEADQUARTERS 9-29-08 TP-TL AIR RETURN TO HEADQUARTERS $407.50 9-30-08 TL-TP AIR WORK IN WILDWOOD OFFICE 10-8-08 TL-TP AIR WORK IN WILDWOOD OFFICE $551.98 10-14-08 TP-TL AIR RETURN TO HEADQUARTERS 10-15-08 TL-TP AIR WORK IN WILDWOOD $240.50 10-20-08 TP-TL AIR RETURN TO HEADQUARTERS $269.50 10-29-08 TL-TP AIR WORK AT WILDWOOD $271.50 11-5-08 TP-TL AIR RETURN TO HEADQUARTERS $482.00 11-7-08 TL-TP AIR WORK AT WILDWOOD 11-18-08 TP-TL AIR RETURN TO HEADQUARTERS $550.98 11-19-08 TL-TP AIR WORK AT WILDWOOD 12-11-08 TL-TP AIR WORK AT WILDWOOD $531.00 12-15-08 TP-TL AIR RETURN TO HEADQUARTERS 12-17-08 TL-TP AIR WORK AT WILDWOOD $647.00 12-29-08 TP-TL AIR RETURN TO HEADQUARTERS 1-7-09 TP-TL AIR WORK AT WILDWOOD $572.19 1-13-09 TP-TL AIR RETURN TO HEADQUARTERS 1-14-09 TL-TP AIR WORK AT WILDWOOD $621.19 1-15-09 TP-TL AIR RETURN TO HEADQUARTERS 1-16-09 TL-TP AIR WORK AT WILDWOOD $289.59 1-26-09 TP-TL AIR RETURN TO HEADQUARTERS $511.19 1-27-09 TL-TP AIR SITE VISIT AVON PARK $147.00 2-3-09 TP-TL AIR RETURN TO HEADQUARTERS $237.01 2-6-09 TP-TL AIR WORK AT WILDWOOD $200.60 2-16-09 TP-TL AIR RETURN TO HEADQUARTERS $200.59 2-20-09 TL-TP AIR ATTEND CONFERNECE IN TP $531.19 2-24-09 TP-TL AIR RETURN TO HEADQUARTERS 3-16-09 TP-TL AIR RETURN TO HEADQUARTERS $266.60 3-25-09 TL-TP AIR WORK IN WILDWOOD $481.69 3-30-09 TP-TL AIR RETURN TO HEADQUARTERS 4-16-09 TL-TP AIR HDQTRS TO DISTRICT OFFICE $556.19 4-21-09 TP-TL AIR RETURN TO HEADQUARTERS 4-24-09 TL-TP AIR $294.60 5-1-09 TL-TP AIR TL TO DISTRICT OFFICE $269.60 5-7-09 SP-TL CAR 5-7-09 TL-TP AIR TL TO DISTRICT OFFICE $269.60 5-12-09 TP-TL AIR TO HEADQUARTERS $511.19 5-14-09 TL-TP AIR TO DISTRICT 5-26-09 TP-TL CAR TO TALLY 5-27-09 TL-SP CAR 6-9-09 SP-TL CAR 6-12-09 TL-SP CAR 6-16-09 SP-TL CAR 6-18-09 TL-SP CAR 6-24-09 SP-TL CAR 7-2-09 TL-SP CAR 7-7-09 SP-TL CAR 7-28-09 TP-TL AIR $286.60 7-30-09 TL-TP AIR $266.60 8-10-09 TP-TL CAR 8-14-09 TL-TP CAR 8-21-09 TL-TP AIR $269.60 9-1-09 SP-TL CAR 9-3-09 TL-SP CAR 9-21-09 TP-TL AIR $439.19 9-29-09 SP-TL CAR 9-30-09 TL-SP CAR 10-6-09 SP-TL CAR R HOME TO HEADQUARTERS 10-7-09 TL-SP CAR HOME TO DISTRICT OFFICE 10-14-09 TP-TL AIR $295.60 10-15-09 TL-TP AIR $269.60 10-23-09 TL-SP CAR 11-18-09 TP-TL AIR 11-19-09 TL-TP AIR 11-23-09 SP-TL CAR 12-1-09 SP-TL CAR 12-3-09 TL-SP CAR 12-8-09 SP-TL CAR 12-10-09 TL-SP CAR 12-15-09 SP-TL CAR 12-17-09 TL-SP CAR 12-29-09 SP-TL CAR $511.20[4/] For the months of February through April 2008, July through December 2008, and January through April 2009, there are gaps in the daily vehicle usage log so that the purpose of all the trips taken cannot be ascertained from the records. Based on the mileage that was recorded, some of the trips were not local trips. In some months, there is no mileage recorded except at the beginning and the end of the month, but the difference in the mileage shows that travel did occur in that month. Because of the poor record keeping, the travel records do not account for some travel; yet, there had to have been travel between Tallahassee and the St. Petersburg-Tampa area. For instance, Mr. Peterman's records show a trip from Tampa to Tallahassee on February 24, 2009, and the next trip does not occur until March 7, 2009, when he traveled from Tampa to Miami. There is no explanation of how he got to Tampa from Tallahassee. In March 2008, his records show that he traveled from Tallahassee to Tampa by air on March 6, from Tallahassee to St. Petersburg by car on March 24, and from Tallahassee to St. Petersburg by car on March 27. Because of the gaps in the car travel records, it is impossible to tell how he got to Tallahassee after his March 6 travel to Tampa and his March 24 travel to St. Petersburg. On February 29, 2008, a Friday, Mr. Peterman traveled from Tallahassee to Tampa, arriving in Tampa after 5:00 p.m. He traveled back to Tallahassee on Monday, March 3, 2008, arriving at 7:55 a.m. The airfare was $560.00. The stated purpose was "State Business," with no further elaboration. There was nothing on Mr. Peterman's calendar that showed state business was being conducted. Since Mr. Peterman arrived after the close of business on Friday and returned before the beginning of the business day on Monday, the trip was not for state business and was for the purpose of Mr. Peterman returning to his primary residence. On Friday, May 2, 2008, Mr. Peterman flew from Tallahassee to Tampa, arriving at 7:25 p.m. The purpose of the trip was designated as "Airport Destination." The vehicle travel log shows that he traveled by car from Tallahassee to St. Petersburg on Sunday, May 4, 2008. On Monday, May 5, 2008, he flew back to Tallahassee, leaving at 10:25 a.m. and arriving at 11:20 a.m. The cost of the round-trip ticket was $469.00, and the cost of parking was $36.00. On his voucher for reimbursement, Mr. Peterman stated that he worked in the St. Petersburg office. Given the time that it would take to get from St. Petersburg to Tampa to catch a 10:25 a.m. flight, there would be no time to work in the Wildwood office, and the calendar showed no work. It is not understandable why the travel records also show a car trip to St. Petersburg on May 4, 2008, but whether Mr. Peterman went by airplane or automobile, the trip was not for state business and was for the purpose of Mr. Peterman returning to his primary residence. On Friday, August 22, 2008, Mr. Peterman flew from Tallahassee to Tampa, arriving at 3:50 p.m. The cost of the airline ticket was $702.00, and the cost of parking was $36.00. On Monday, August 25, 2008, Mr. Peterman flew back to Tallahassee, arriving at 12:12 a.m. His calendar did not reflect that he did any business at the Wildwood office from August 22 to 25, 2008. The purpose of the trip was to return to his primary residence. On August 26, 2008, Mr. Peterman returned to Tampa, arriving at 3:50 p.m. He stated in his travel voucher request that the purpose was to work in the Wildwood office. His calendar did not reflect any work performed in St. Petersburg on August 26, 2008. On January 13, 2009, Mr. Peterman flew from Tampa to Tallahassee, and flew back from Tallahassee to Tampa on January 14, 2009. The following day, January 15, 2009, Mr. Peterman flew from Tampa to Tallahassee and returned to Tampa by air on January 16, 2009. His calendar showed that he had two appointments at the Wildwood office on January 15, 2009. On March 28, 2009, a Saturday, Mr. Peterman flew from Miami to Tampa rather than to Tallahassee. He took a 7:00 a.m. flight on Monday, March 30, 2009, to Tallahassee. The trip to Tampa from Miami was to return to his primary residence as evidenced by his early morning flight to Tallahassee on March 30, 2009. Thus, the flight to Tallahassee would not have been incurred except for his desire to spend the weekend at his St. Petersburg home. On Saturday, September 19, 2009, Mr. Peterman, flew from Miami to Tampa, rather than fly to Tallahassee. On Monday, September 21, 2009, Mr. Peterman took a 10:05 a.m. flight to Tallahassee, and returned to Tampa on a 6:15 a.m. flight. It can only be concluded that Mr. Peterman flew to Tampa on September 19, 2009, in order to return to his primary residence and not for state business based on his morning flight to Tallahassee on September 21, 2009. Thus, the cost of the flight to Tallahassee would not have been incurred except for his desire to spend the weekend at his St. Petersburg home. Mr. Peterman claimed that while he was at the Wildwood office that he met with children and parents of children concerning the care provided by DJJ, met with staff in the various facilities in the middle region of Florida, and talked with persons waiting in the lobby of his office. However, Mr. Peterman's calendar does not account for a large amount of the time that he purportedly spent at the Wildwood office, and his testimony was vague, characterized by generalities rather than in specifics. The evidence established that Mr. Peterman made a concerted effort to make sure that he spent his weekends in St. Petersburg where he had his primary residence and was pastor of a church.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Mr. Peterman violated section 112.313(6) and recommending a civil penalty of $5,000.00 together with a public censure and reprimand. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2011.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The Petitioner is MCI Telecommunications Corporation, whose business address is Suite 400, 400 Perimeter Center Terrace NE, Atlanta, Georgia 30346. The Respondent is State of Florida, Department of General Service, whose address is 614 Larson Building, 200 East Gaines Street, Tallahassee, Florida. The Intervenors are Microtel, Inc., whose address is 7100 West Camino Real, Suite 311, Boca Raton, Florida 33433, and United States Transmission Systems, whose business address is 320 Park Avenue, New York, New York 10022. MCI, Microtel, AT&T, Southland, and USTS are all interexchange carriers authorized by the Federal Communications Commission to provide, among other things, interstate WATS. MCI, AT&T, Southland, and Microtel are all interexchange carriers certified by the Florida Public Service Commission to provide, among other things, intermachine trunks and intrastate WATS. The interexchange carriers who participated in the November 5, 1987, negotiations were not advised prior to 9:00 a.m. on that day that the negotiations would consist of three rounds of price quotations with the prices quoted and each round being posted immediately on the board for review by the other carriers. The posting by the Division of Purchasing between 3:00 p.m. on November 2, 1987, and 3:00 p.m. on November 5, 1987, of a draft memorandum from William Monroe to Glenn Mayne was not a bid tabulation. The State of Florida provides a communications system to state agencies, local governments, and public school districts through the SUNCOM Network. The SUNCOM Network consists of switches, access lines, and transmission facilities such as Intermachine Trunks, Interstate WATS, and Intrastate WATS. On the SUNCOM Network, long distance calls from one SUNCOM user to another SUNCOM user are completed on IMTs. Intrastate WATS facilities are used to place in-state long distance calls from a SUNCOM user to a party not a member of the SUNCOM Network. Interstate WATS facilities are used to complete out-of-state long distance calls. The Division of Communications desired to migrate the data users of the SUNCON Network from an analog environment to a digital environment. In order to do that, there had to be changes to the SUNCOM switching facilities and changes to the transmission facilities. In 1984, a Request for Proposal (RFP) was issued for the switches. As a result of the RFP, the network went from 5 to 11 switches on December 1, 1986. The Division of Communications decided to utilize digital transmission facilities for both IMTs and Interstate WATS facilities on the newly configured network. In 1985, the Division of Communications negotiated a contract with MCI for the provision of the Interstate WATS. MCI made no protest to being awarded the contract by negotiation. AT&T was selected to provide the IMTs. The selection of AT&T and MCI was an interim measure to give the Division of Communications time to evaluate the transmission facilities for changes after the new network had stabilized. At the time of the final hearing, AT&T was the current provider for the IMTs and Intrastate WATS and MCI was the current provider for the Interstate WATS. On March 1, 1987, the Division of Communications and the Division of Purchasing sent a letter to seventeen suppliers of transmission facilities. The letter advised the suppliers that the Division of Communications was beginning an evaluation process to determine the viability of replacing some or all of the SUNCOM Network completion facilities with different suppliers. The suppliers were advised that a potential supplier did not have to service all routes or provide all facilities in order to be considered. Suppliers were requested to provide information concerning their transmission facilities. It was contemplated that the transmission facilities would be tested for approximately 90 days, during which time there would be consideration of reliability, maintainability, cost, and billing. The evaluation process also contemplated consideration of corporate viability and status, network typology, and references from existing customers similar in size to the State of Florida. The suppliers were cautioned that their participation in the evaluation process did not guarantee a contract and that it was possible that the evaluation process might not result in any contract. The suppliers were also advised that any contract would be negotiated. The March 18, 1987, letter is a request for information and was so considered by the Division of Communications and the Division of Purchasing. By April 9, 1987, the Department of General Services had received ten responses to the March 18, 1987, letter. A five member evaluation team was formed to review the April 9 responses from the suppliers, conduct the oral presentations, conduct the 90-day test and make recommendations. The evaluation committee was comprised of five employees of the Division of Communications. Division of Purchasing personnel did not actively participate on the evaluation committee because they wanted to remain impartial in the event the Division of Purchasing would later have to decide what method of procurement to use. Each potential supplier was scheduled for an oral presentation in late April or early May of 1987. Additional information about the proposals was obtained at those presentations. The suppliers were asked during oral presentation if their prices were open for negotiation. Ed Martinez of MCI said that MCI was open for negotiation. Of the carriers that survived the technical evaluation process, MCI had submitted the lowest price for all of the solicited telecommunications facilities and services. An in-service test of the ten suppliers was conducted from July 10 to September 30, 1987. One supplier, Lightnet, disconnected its transmission facility prior to the end of the test period. Robert Davis, chairman of the evaluation committee, used a numerical rating scheme to assist in evaluating the suppliers. The numerical point system was used as a way to make the evaluation process more objective. Additionally, when the evaluation was begun, the evaluation committee did not know whether contracts would be awarded through a formal acquisition process or through negotiation. The committee thought that an orderly ranking of the participants based on a rating scheme would be beneficial to Mr. Mayne in determining the method of acquisition. Mr. Mayne was unaware that a numerical point system was being used to evaluate the responses until he read the report prepared by the evaluation committee. On October 16, 1987, the evaluation committee issued the "Report on Alternate Suppliers for SUNCOM Network Transmission Facilities." The report outlined the evaluation process, presented the findings of the committee in the areas of pricing, billing, reliability-maintainability, corporate viability and general compliance by the suppliers, and made recommendations based on their findings. The evaluation committee concluded that, based on the prices submitted by the suppliers, it was possible for the state to reduce the cost of the operation of the network by over $368,000 per month. In considering the corporate viability of a supplier, the evaluation committee did not intend to conduct an indepth financial analysis. The evaluation committee wanted to determine whether the suppliers would have the ability to survive in a competitive environment for the contract period of three years. Both DGS' staff and MCI's financial analysis expert agreed that ITT, MCI, Microtel, AT&T and Southland were in a position to maintain their corporate viability for the contract period. The evaluation committee recognized that there was an opportunity to further reduce the cost of the network transmission facilities. The committee recommended that the IMTs, Interstate WATS and Intrastate WATS not be provided by one supplier. It was also recommended that Sprint, Digital Signal, and Lightnet be eliminated from further consideration. The report did not recommend specific suppliers. The committee recognized that if the point evaluation were used that the ranking would change as the result of further negotiations. They felt that if a decision was made not to use the point evaluation, then low cost would determine the suppliers. The report was presented to Glenn Mayne for his consideration. Based on his review of the report, Mr. Mayne determined that the State was currently paying far too much money for the transmission facilities; the State desired to have more than one supplier for the transmission facilities; and there was a group of potential alternate suppliers who could supply the State with transmission facilities which would be acceptable for the SUNCOM Network. As soon as Mr. Mayne became aware of the enormous potential savings to the State (and probably because of that awareness) things began to happen very quickly. A copy of the evaluation report was given to Bill Monroe. Mr. Mayne and Mr. Monroe discussed the report and Mr. Mayne expressed some concerns relating to the Division of Communications' need to migrate data signals to the network. Monroe asked that those concerns be put in writing. Mr. Mayne complied by memorandum dated October 28, 1987, in which he expressed his concerns relating to the discontinuance of Telpak and the Division of Communications' plans to migrate data to the voice network. The desire to address these concerns in the negotiations was due primarily to an AT&T proposal submitted in the late summer or early fall of 1987, which addressed these concerns. The Department had made no effort to obtain proposals similar to AT&T's from the other suppliers prior to requesting authority to negotiate from the Division of Purchasing. The Division of Purchasing deemed the October 28 memorandum to be the Division of Communications' formal request for the authority to negotiate. Mr. Monroe authorized the Division of Communications to negotiate contracts for the transmission facilities and services for the SUNCOM Network. The authorization to negotiate was granted because the providing of transmission facilities and services was a regulated portion of the telephone industry; the participants were limited to those which met Florida Public Service Commission guidelines for facility based operations; an indepth evaluation of the suppliers had been performed; and the delay incident to using any other procurement method would result in a substantial monetary loss to the State. The most significant factor in the decision to negotiate was the monetary loss which would result from delay. The authorization memorandum recommended that the negotiation be handled as a joint venture between the Division of Communications and the Division of Purchasing, and that the Division of Purchasing participate in development of the criteria for final selection of a supplier. Mr. Mayne discussed the method of negotiations to be used with Mr. Monroe and his staff. Based on his past experience with one-on-one negotiations, Mr. Mayne felt it would be fairer to put up everyone's prices on the board so that all suppliers could see each others prices. Mr. Mayne suggested that there be two verbal rounds of pricing and a final round in writing. Mr. Monroe concurred with Mr. Mayne's suggestion. It was felt this method of negotiations would result in better pricing for the State; could be done quickly and easily; and would reduce the chance of one supplier being favored over another. The intended decision of the Division of Purchasing to authorize the negotiation was posted in the Division of Purchasing beginning November 2, 1987, at 3:00 p.m. The posting was in the form of a post-dated, unsigned memorandum from the Division of Purchasing Director to the Division of Communications Director. Stamped at the bottom of the draft memorandum was the language required by Section 120.53(5), Florida Statutes, indicating that the failure to file a timely protest would constitute a waiver of Chapter 120, Florida Statutes, proceedings. In large letters at the top of this posting was the word DRAFT. Each of the ten suppliers was notified that the Division of Purchasing had authorized negotiations and that this decision would be posted beginning November 2 through November 5, 1987. On November 2, 1987, Cherrie McClellan, a purchasing specialist for the Division of Purchasing, called MCI's Ed Martinez to advise him that the authorization for the Division of Communications to negotiate for the procurement of the SUNCOM Network alternate suppliers would be posted from 3:00 p.m. November 2, 1987 to 3:00 p.m. November 5, 1987. Ms. McClellan was unable to reach Mr. Martinez and left the message on his recording machine. On November 3, 1987, Mr. Martinez called Ms. McClellan to confirm the message. She told him that the posting was for the authority for the Division of Communications to negotiate and she assumed that the Division of Communications would be contacting him. In giving the telephone notification to MCI, the Division of Purchasing did not specifically advise MCI that its failure to file a timely protest of the Division of Purchasing's decision would waive MCI's rights to proceedings under Chapter 120, Florida Statutes. On November 3, Mr. Martinez also called John Fain, a purchasing specialist supervisor with the Division of Purchasing. Mr. Fain advised Mr. Martinez that the Division of Purchasing had received a request for authority to negotiate from the Division of Communications, final negotiation could not begin until after the conclusion of the posting at 3:00 p.m. on November 5, 1987, and he did not know if there would be another posting. On November 2, 1987, Mohammed Amirzadeh Asl, an electrical engineer with the Division of Communications, called Ed Martinez between 2:00 and 3:00 p.m.; invited him to the negotiations on November 5; told him to bring his best prices for IMT routes and personnel who could make a decision; advised him he would have access during the negotiations to a phone but he had to use his credit card for any calls; and told him that DGS would be faxing him additional information concerning the negotiations. Mr. Amirzadeh also advised the other suppliers on November 2 of the negotiations and told them the same thing he had told Mr. Martinez. Mr. Martinez called Mr. Amirzadeh on November 3 and 4 with questions concerning the negotiations. On November 4, DGS faxed a memorandum to the suppliers concerning the criteria for the negotiations and the prices which had been quoted thus far to the Division of Communications. The memorandum advised the suppliers that preliminary discussions would start at 9:00 a.m. on November 5 at the Division of Communications and official negotiations would not start until 3:00 p.m. When Mr. Martinez, the MCI representative, came to the negotiations, he expected the Department to negotiate first with MCI to attempt to reach a mutually satisfactory agreement for the solicited telecommunications facilities and services, and he expected the Department to negotiate with other suppliers only if the negotiations with MCI were unsuccessful. These expectations were based on MCI's status as one of the incumbent suppliers, on the fact that the Department appeared to very satisfied with MCI's performance, and on the fact that MCI had submitted the lowest price proposals for all of the solicited telecommunications facilities and services in its April 9, 1987, submittal. These expectations were unwarranted. The negotiations began at 9:00 a.m. on November 5,1987. Glenn Mayne started out the negotiations by discussing the criteria which had been faxed to the suppliers on November 4. The suppliers were also given copies of the evaluation committee report. The suppliers were advised that there would be three rounds of negotiations The first two rounds would be preliminary. The last round of negotiation was to take place prior to 5:00 p.m. There were some assumptions that the suppliers were given to use in presenting their prices. The suppliers' prices were to be for one T-1 on each route, and the costs were to include access charges. Additionally, if there was any difference between the quoted and actual access charges the difference would be the responsibility of the supplier. The format used by the Division of Communications for the negotiations on November 5, 1987, was not normally used by the Department. The first round of pricing was at 11:00 a.m. Each supplier gave its price orally and as the price was given it was written on a board in the room. An objection was raised by one of the suppliers that the method used could give the last supplier an advantage because he would have seen all of the other suppliers' prices prior to giving his price. The second round was scheduled for 2:00 p.m. The method of receiving prices was changed to accommodate the objections at the first round. In the second round each participant wrote his prices on a piece of paper, all the papers were picked up, the papers opened, and the prices were written on the board. Between the second and third rounds, each supplier was given an opportunity to meet with Mr. Mayne and his staff. Mr. Martinez met with Mr. Mayne and his staff at 3:00 p.m. During the meeting, Mr. Mayne advised Mr. Martinez that DGS would like two separate fibers for each T-1 route for IMTs. The price for IMTs given by Microtel was approximately $9.50 per mile month. The corresponding price for MCI was around $15 or $16 per mile month. Mr. Mayne advised Mr. Martinez that, in order for MCI to be considered for a portion of the IMTs, MCI's price needed to be around $10 per mile month. Mr. Mayne did not reference access charges when he discussed the $10 per mile month. One of the assumptions of the pricing for the negotiations was that all prices would include access charges. During the meeting, Mr. Mayne told Mr. Martinez that MCI's price for IMTs was almost twice as much as the other suppliers. Additionally during the 3:00 p.m. meeting between Mr. Mayne and Mr. Martinez, Mr. Mayne explained to Mr. Martinez that the suppliers would reconvene at 4:00 p.m. and report their final responses and the last round of pricing would be before 5:00 p.m. Notwithstanding the clear explanation of when the suppliers would have their last opportunity to give their final prices, Mr. Martinez was apparently confused because he thought (albeit erroneously) that he would have another opportunity to offer a price after the third round. Because he thought that as an incumbent supplier MCI would have another opportunity to offer a price after all of the other suppliers had given their final prices, Mr. Martinez made a judgment call not to offer MCI's best price during the third round of the negotiations. The best price that Mr. Martinez was authorized to offer on the interstate WATS was slightly higher than the best price actually offered by another supplier. Mr. Martinez appears to be the only one who was confused about the finality of the third round of negotiations. It would not have been fair to the other suppliers to have afforded MCI an opportunity to submit further prices after the third round. No one from the Department of General Services advised Mr. Martinez that he would be given an opportunity to present further pricing after the other suppliers had given their best and final prices. The suppliers reconvened at 4:00 p.m. A supplier inquired whether the prices could be given before 5:00 p.m. Mr. Mayne asked the other suppliers whether they were ready and no one objected to giving the prices before 5:00 p.m. Mr. Mayne emphasized the third round was the last round. The suppliers gave their final prices at 4:19 p.m. The suppliers were asked to sign the sheets which contained their prices for the last round. Microtel submitted the lowest price for IMTs at $8.89 per mile. MCI's price for the IMTs was $12.52 per mile. ITT submitted the lowest price for Interstate WATS facilities at $.1249 per minute. MCI submitted $.1285 per minute for the Interstate WATS facilities. MCI submitted the lowest price for Intrastate WATS facilities at $.1133 per minute. Microtel submitted $.1139 per minute for the Intrastate WATS facilities. At the conclusion of the final round of pricing, AT&T indicated that they had additional pricing which was contained in a proposal submitted to Mr. Mayne in late summer or early fall of 1987. Mr. Mayne thought that AT&T had submitted its final prices during the last round and he advised AT&T that he would not consider the prices that were not contained on the sheets submitted by AT&T during the last round. John Fain, representative for the Division of Purchasing at the negotiations, also stated that prices not placed on the board could not be accepted. Mr. Mayne advised the suppliers at the end of the negotiations that the Division of Communications would try to reach a decision by the close of business on November 6. At the end of negotiations on November 5, 1987, the Division of Communications returned to AT&T its proposal which had formed part of the basis for the Division of Communications' request for authority to negotiate after AT&T claimed pricing information contained in that proposal was proprietary. At the beginning of the negotiation session on November 5, Mr. Mayne was satisfied that each of the participants could provide the solicited transmission facilities and services. Since the AT&T proposal would not be considered, Mr. Mayne determined that the contract should be awarded based on lowest cost for each of the transmission facilities. Prior to acting on this determination, Mr. Mayne discussed the matter with the Division of Purchasing. The Division of Purchasing concurred in the decision to award on the basis of lowest cost. The contract awards were based on low price and not the total points assigned to the providers based upon the numeric rating system used by the evaluation committee in the evaluation report. Mr. Amirzadeh telephoned Mr. Martinez on November 6, 1987, to inform MCI that the Department intended to award the Intrastate WATS facilities to MCI. Mr. Martinez advised Mr. Amirzadeh that the prices submitted by MCI were package prices. MCI later contacted the Department and advised the Department that the MCI price for Intrastate WATS was a package price. MCI withdrew its offering for Intrastate WATS. On being advised that MCI was withdrawing its offer for the Intrastate WATS facilities, the Department decided to award the Intrastate WATS facilities to the next lowest provider, which was Microtel. On November 10, 1987, the Department issued Communications Service Authorizations (CSAs) to Microtel for the Intrastate WATS facilities and IMTs, and to ITT for the Interstate WATS facilities. These CSAs are the only contracts to be executed by the State of Florida for the solicited telecommunications services and facilities. The CSAs were signed by the Division of Communications. By contracting with Microtel for IMTs, Mr. Mayne estimated there would be a cost savings of $216,000 per month. The cost savings associated with contracting with Microtel for the Intrastate WATS is approximately $98,000 a month. It is estimated the State will save approximately $105,000 per month by contracting with ITT for Interstate WATS. MCI filed a notice of intent to protest the contract awards on November 12, 1987. MCI filed its formal written protest on November 23, 1987. In acquiring these transmission facilities the Department is leasing spaces on the supplier's fiber optic cable. The spaces within the cable are analogous to time envelopes, which may carry information or no information, being shot down the fiber optic cable. The Department leases the spaces in multiples of T-1s. A T-1 represents 1.544 million spaces per second. When the Department leases a T-1, the Department has a dedicated physical connection and the information that will be contained in the spaces or time envelopes will always appear in the same space and in the same time. The Department leases the fiber facilities on a 24-hour-a-day basis, because it is more economical than leasing for shorter periods of time. While the space is being leased to the State, no other customer of the transmission facilities supplier can use that space. The functions of the facilities can also be described as follows. The interstate WATS service, the intrastate WATS service, and the IMT service for which the Department contracted, involve the receipt by the carrier of an originating call from a SUNCOM switch and the transmission of that call over the carrier's owned or leased facilities, including access facilities leased by the carrier from the local exchange company, to its destination either outside or inside the State of Florida or to another SUNCOM switch. In addition to the lease of spaces, the Department will be acquiring maintenance and billing services and, in the case of the WATS facilities, it will also be procuring management reports concerning the location of calls. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the State of Florida will not have physical access to, the ability to monitor traffic over, maintenance or repair responsibility for, or rights to use particular components of those facilities. This applies to both the carriers' facilities and the access facilities leased by the carrier from local exchange companies to connect the SUNCOM switches and the carriers' facilities. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the long distance carrier will have the responsibility for maintenance and repair of those facilities, the right to replace or upgrade those facilities in a fashion transparent to the State, and the right to determine the physical path through those facilities over which information from the State of Florida would be transmitted. This applies to both the carrier's facilities and the access facilities leased by the carrier from the local exchange companies to connect the SUNCOM switches to the facilities. The Department interprets Rule Chapter 13C-2, Florida Administrative Code, to apply to the acquisition of nonregulated communications equipment. The forms referred to in Rule 13C-2.008 are forms which State agencies use in requesting approval from the Division of Communications for the purchase or lease of nonregulated communications services or equipment. Rule Chapter 13C-1, Florida Administrative Code, has been interpreted by the Department to deal with a regulated environment. The procurement at issue in this proceeding is in a regulated environment. The criteria and procedures described in Chapter 13C-2, Florida Administrative Code, were not used in this procurement of the solicited telecommunications facilities and services. The negotiation process itself was negotiated in a fair and equitable manner. Each supplier was advised at the beginning of the negotiation session that there would be three rounds of pricing. There has been no claim by MCI that any of the suppliers had knowledge prior to 9:00 a.m. on November 5, 1987, of the actual negotiation process that would be used. When an objection was made by one of the suppliers to the method of accepting pricing in round one, the method of accepting prices was changed so that no supplier would have an advantage over another. It was made clear that the third round was the last round in which the suppliers could submit their best and final offers. The Department did not consider offers which were not submitted during the third round. The Department attempted to provide competition in the negotiation process by having the suppliers compete against each other in the pricing rounds. No supplier was treated more favorably than another. MCI was never told that it would be awarded the contracts. MCI made no protest or objection to the negotiation process prior to or on November 5, 1987.
Recommendation Based on all of the foregoing, it is recommended that a final order be entered denying the relief requested by the Petitioner. DONE AND ENTERED this 11th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 11th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5338BID The following are my specific ruling on all of the findings of fact proposed by all of the parties. Findings proposed by the Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: All generally accepted, but some details have been omitted as either subordinate or unnecessary. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11 and 12: Rejected as irrelevant. Paragraphs 13, 14, and 15: Accepted. Paragraph 16: Rejected as irrelevant. Paragraphs 17, 18 and 19: Accepted. Paragraph 20: Rejected as irrelevant in light of other evidence. Paragraphs 21, 22, 23 and 24: Accepted. Paragraph 25: Accepted in substance. Paragraphs 26 and 27: Accepted. Paragraph 28: Rejected as subordinate and unnecessary details. Paragraph 29: Accepted in substance. Paragraph 30: Rejected a subordinate and unnecessary Paragraphs 31 and 32: Accepted: Paragraph 33: Rejected as contrary to the greater weight of the evidence. Paragraphs 34, 35, 36, 37, 38 and 39: Accepted. Paragraphs 40 and 41: Rejected because the analogies fail. Paragraph 42: Accepted. Paragraph 43: Rejected as subordinate and unnecessary details. Findings proposed by the Respondent: Paragraphs 1, 2, 3, 4, 5, 6 and 7: Accepted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Accepted. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraphs 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraph 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44: Accepted. Paragraph 45: First sentence accepted. The remainder is rejected as subordinate and unnecessary details. Paragraph 46: First four sentences accepted. Last sentence is a conclusion of law. Paragraphs 47 and 48: Accepted. Findings proposed by the Intervenors: Paragraph 1: Rejected as statement of position rather than proposed finding. Paragraph 2 and 3: Accepted. Paragraphs 4, 5 and 6: Rejected as subordinate and unnecessary details. Paragraphs 7, 8, 9 and 10: Some of the details proposed in these paragraphs have been included, but most are rejected as subordinate and unnecessary. Paragraph 11: Rejected as subordinate and unnecessary, details. Paragraphs 12 add 13: Accepted in substance. Paragraphs 14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraphs 16 and 17: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, 23 and 24: Some of the details proposed in these paragraphs have been included, but most have been rejected as subordinate and unnecessary. Paragraphs 25, 26 and 27: Rejected as subordinate and unnecessary details. Paragraph 28: Accepted. Paragraph 29, 30, 31 and 32: Rejected as subordinate and unnecessary details. Paragraphs 33, 34, 35, 36, 37 and 38: Accepted. Paragraphs 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49: Rejected as subordinate and unnecessary details. Paragraphs 50 and 51: Rejected as subordinate and unnecessary details. Paragraphs 52 and 53: Accepted. Paragraph 54: Rejected as subordinate and unnecessary details. Paragraph 55: Accepted in substance. Paragraph 56: Rejected as subordinate and unnecessary details. Paragraphs 57, 58 and 59: Accepted in substance. Paragraphs 60 and 61: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Susan Kirkland, Esquire Sandra D. Allen, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Carolyn S. Raepple, Esquire Richard D. Melson, Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Patrick K. Wiggins, Esquire Wings Solcum Benton, Esquire Ranson & Wiggins 325 West Park Avenue Post Office Drawer 1657 Tallahassee, Florida 32302 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue presented is whether Petitioner's application for registration as a funds transmitter should be granted.
Findings Of Fact Petitioner is a scheduled, commercial airline, certified by the Federal Aviation Administration. Its base of operations in the United States is Fort Lauderdale Executive Airport. Its passenger flights depart from and arrive at Fort Lauderdale International Airport, traveling to Haiti, the Dominican Republic, the Turks and Caicos Islands, and the Bahamas. Petitioner transports passengers, which constitutes ninety percent of Petitioner's business, and transports cargo and mail, which constitutes seven to eight percent of Petitioner's business. Petitioner also acts as a funds transmitter, which constitutes approximately one to two percent of Petitioner's business. Petitioner has performed funds transmittal since 1989 when Petitioner was founded. It started that service at the request of a Haitian who lived and worked in the United States and wanted to send money to his family in Haiti. Since then and currently, Petitioner only transmits funds to Haiti. Petitioner has in place detailed procedures for funds transmittal. Petitioner receives such funds in cash. Petitioner then writes a check made payable to the recipient. The check is then placed in an envelope, which is placed in a courier pouch, which is then placed on the aircraft. The pilot signs a receipt for the funds and delivers the pouch to Petitioner's receiving agent in Haiti, who signs for the pouch. Petitioner's agent then delivers it to a company Petitioner contracts with for giving out the pouches. The recipient of the check goes to that company, presents identification with a photograph, and is given the check. Petitioner charges only a three percent fee for this service, a cost which is substantially below the industry's prevailing charge. Petitioner deposits daily funds received for transmittal in a separate account in a different bank from the bank in which Petitioner maintains its operating funds. The majority of the customers for whom Petitioner transmits funds are repeat customers. The parties stipulated that Chapter 560, Florida Statutes, known as the Money Transmitter's Code, became effective on July 1, 1994. Petitioner had no knowledge of the existence of the Money Transmitter's Code or the effective date thereof. Petitioner's first knowledge of the requirement that a money transmitter pay a fee to, and register with, the Department occurred in May of 1996 when one of the Department's investigators made an unannounced visit to Petitioner's place of business. He advised Petitioner of the registration requirement and left an application form with Petitioner. Petitioner filed that application for registration with the Department on June 4. Question numbered 7 on that application reads as follows: "Provide a description of the corporate structure of applicant, including the identity of any parent or subsidiary of applicant." Petitioner's answer states: "Lynx Air International is the only corporation engaged in funds transmittal and is not owned by any other entity." Petitioner's senior vice president, who answered that question on behalf of Petitioner, misunderstood the question; he thought the question only sought information regarding subsidiaries involved in funds transmittal. As he understood the question, he answered it truthfully. Petitioner has no subsidiaries involved in the business regulated by the Department. However, Petitioner does have two subsidiaries which it owns and a third subsidiary in which Petitioner owns a fifty percent interest. The three subsidiaries own the aircraft which Petitioner leases. Petitioner's senior vice president, who is not an accountant, also filed with the Department monthly income statements since Petitioner's yearly financial statement was not yet completed. Petitioner's C. P. A. subsequently submitted to the Department Petitioner's annual financial statement which was prepared according to generally-accepted accounting principles. Petitioner's net worth is in excess of $100,000. The transmittal of funds is only ancillary to Petitioner's business as a commercial airline. The maximum amount of funds transmitted does not exceed $5,000 to $6,000 per flight. Petitioner wishes to continue serving as a funds transmitter because the service is beneficial to Petitioner and to the public. Petitioner benefits because offering the service is a method of bringing "the customer in the door." The customer who uses Petitioner's service is also likely to purchase a ticket from Petitioner when that customer needs to travel. When Petitioner properly performs the funds transmittal service, the customer obtains a level of trust in Petitioner. Similarly, the customer benefits because Petitioner offers a safe method for the customer to send money to help support his or her family in Haiti. Petitioner has not caused any problems or losses to, or received any complaints from, any persons who have used Petitioner as a funds transmitter. Petitioner has not yet posted the bond required for registration with the Department because the Department advised Petitioner it was not necessary for Petitioner to incur that expense until its application for registration was approved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered granting Petitioner's application for registration and requiring Petitioner to post the requisite bond prior to issuance of the registration. DONE AND ENTERED this 28th day of October, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of October, 1997. COPIES FURNISHED: Michael A. Noto, Esquire 505 South Flagler Drive Suite 1001 West Palm Beach, Florida 33401 Robert Alan Fox, Esquire Office of the Comptroller The Fletcher Building 101 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399 Honorable Robert F. Milligan Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
