The Issue At issue herein is whether or not the Petitioner, a not-for- profit organization is entitled to a refund of taxes collected and paid to Respondent pursuant to the exemption provision of Subsection 212.04(2)(b)2., Florida Statutes.
Findings Of Fact Based on the testimony of the Petitioner's witness, the arguments of counsel and Respondent's brief submitted on June 5, 1979, the following relevant facts are found. The Petitioner, Miami Civic Music Association, is seeking a refund of taxes collected and paid prior to October 1, 1978, on the sale of membership fees. The Petitioner obtained a certificate qualifying it as a not-for-profit organization from the United States Internal Revenue Service since approximately 1945. This status has been submitted to Respondent. Prior to October 1, 1978, Petitioner submitted to Respondent approximately $1,602.33 based on the sale of membership dues received for musical performances which were to he held subsequent to October 1, 1978, i.e., October 25, 1978 through April, 1979. Petitioner bases its refund claim on the fact that the actual concert series which gave rise to the ticket sales occurred after October 1, 1978. Respondent's position is that the Petitioner is not entitled to a refund, first, on the ground that the tax collections for which the refund is being sought were collected prior to October 1, 1978, and therefore not properly refundable under the exemption provision of Subsection 212.04(2)(b)2., Florida Statutes. Secondly, Respondent contends that Petitioner is without standing to seek a refund since the sales tax applicable to admission charges purportedly collected must first be refunded to the respective subscribers which the Petitioner has not done in this case. Subsection 212.04(2)(b)2., Florida Statutes, provides: No tax shall be levied on dues, membership fees, and admission charges imposed by not- for-profit sponsoring organizations or community or recreational facilities. To receive this exemption, the sponsoring organization or facility must qualify as a not-for-profit entity under the provisions of s. 501(c)(3) of the United States Internal Revenue Cede of 1954, as amended. This exemption became effective October, 1978. The membership fees here in question were sold by Petitioner prior to October 1, 1978, and taxes were collected and remitted to the Department of Revenue. An examination of the legislative intent embodied in Chapter 212, Florida Statutes, reveals that each and every admission is taxed unless specifically exempted. (Subsection 212.21(3), Florida Statutes.) Inasmuch as there was no statutory exemption for Petitioner's organization prior to October 1, 1975, and based on the fundamental rule of statutory construction to the effect that a statute operates prospectively unless the intent is clearly expressed that it operates retrospectively. State, Department of Revenue v. Zuckerman-Vernon Corporation (Florida 1977) 354 So.2d 353. Subsection 212.04(2)(b)2., Florida Statutes, reveals no legislative intent that this amendment was to be applied retrospectively. Finally, since an admissions tax like sales taxes, are collected on behalf of the State by the operator, it is in effect a form of excise tax upon the customer for exercising his privilege of purchasing the admission, the Petitioner herein lacks standing inasmuch as it did not pay the taxes, but merely remitted to the Department of Revenue the tax which was paid by subscribers of the memberships from the organization. See, for example, Scripto, Inc. v. Carson, 101 So.2d 775 (Florida 1958) and State ex rel Szabo Food Services, Inc. of N.C. v. Dickinson, 250 So.2d 529 (Florida 1973). In this case, in the absence of the Petitioner showing that it was the party entitled to a refund of the taxes herein based on a claim of either an overpayment, a payment where no tax was due or a payment erroneously made, Petitioner failed to advance a basis upon which its claim can be granted. Section 215.26, Florida Statutes. For these reasons, I shall recommend that the Petitioner's claim for a refund herein be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner's claim for a refund herein be DENIED. ENTERED this 29th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James H. Wakefield, Esquire Hedges, Gossett, McDonald & wakefield 3325 Hollywood Boulevard, Suite 305 Hollywood, Florida 33021 Linda C. Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
Findings Of Fact Based upon the foregoing and in consideration of Pitts' failure to timely respond to Requests for Admissions, the following Findings of Fact are made in this matter: On or about December 12, 2007, J2J filed a form entitled, "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" with the Florida Division of Elections (the "Division"). The form designated Pitts as the chairman and treasurer of J2J. The Division then sent Pitts a letter dated December 14, 2007, providing directions concerning the filing of a Committee Campaign Treasurer's Report ("Report") by J2J in accordance with the campaign financing requirements set forth in chapter 106, Florida Statutes (2007). Pitts received the letter from the Division. By letter dated April 13, 2009, the Division notified Pitts that J2J had failed to file the Report which had been due on April 10, 2009. Pitts received the letter from the Division concerning the overdue Report. The Division sent a follow-up letter to Pitts dated April 27, 2009, concerning the delinquent Report. Pitts received the letter from the Division. As of the date of its Motion for Summary Final Order, the Division had not received the Report from Pitts. J2J is in violation of the campaign financing requirements for political committees in Florida. The Division deems Pitts' failure to file the Report for J2J to be a willful violation of the Florida campaign financing laws.
The Issue The issue for determination is whether Petitioner has been discriminated against, as he has alleged, and if so, what relief is appropriate.
Findings Of Fact Respondent, F.I.T., is located at the Melbourne airport in Melbourne, Florida. The company provides maintenance support and other general aviation support services for Florida Institute of Technology's flight school. Balazs was hired in August 1987 by Thomas Thompson, Director of Maintenance. His primary duties were the cleaning and washing of aircraft. Thompson left for a 30-day vacation the end of August, and Shop Foreman, John D. Laudenslager, was in charge. Almost immediately, Laudenslager began receiving complaints from female employees regarding Balazs' over-friendly conduct. Laudenslager told Balazs to ignore the females, and when Thompson returned, he was informed of the problem. The complaints were that Balazs would watch the women arrive at work and would jump out from behind the door and scare them. He would also make them uncomfortable by asking about their personal lives. He would also meet them at the gate with exaggerated and unwarranted attention. Thompson spoke to the women involved and confirmed their complaints. On one occasion, Thompson himself observed Balazs at his work station washing an airplane. When a female arrived, Balazs dropped his brush and walked over to the gate. As she walked past him, he turned to face her, staring and leering. Thompson discussed the behavior with Balazs and told him to leave the women alone. Balazs' conduct appeared to improve for a while. His 60 days probationary employment terminated on October 18, 1987. Thompson was reluctant to elevate him to permanent status and to give him the usual merit raise, but by the end of October it appeared that the problem might have been resolved. Balazs received his raise on November 2, 1987. On November 6, 1987, the primary recipient of Balazs' attentions complained again. Virginia Toole has worked at F.I.T. for about nine years, and presently is the senior administrative clerk in charge of records. Balazs started bothering her almost as soon as he started working there. He jumped out from behind the door to scare her, he asked about her boyfriend and asked F.I.T. students about her personal life. When she brought roses she had received from her boyfriend, he told her he could bring bigger and better. Shortly thereafter, a bag of dead roses was found hanging on the gate. After Virginia Toole complained again, John Laudenslager wrote a memo to Balazs reminding him that he had been counselled previously and informing him that further complaints would result in his immediate termination. Balazs was given the memo on November 6th. He was counselled again by Thompson and Laudenslager and was told to avoid all women at work. His response to the memo was peculiarly cavalier. He asked the foreman if he could put the memo on the bulletin board because it was so ridiculous. That evening, after maintenance hours, the company hosted a social gathering to celebrate the dedication of a new building. Balazs attended the gathering and circulated among the females present, showing them the memo and making derisive remarks related to his claim that his accusers were not identified and that the phrase "too familiar and overly friendly" was not defined to his satisfaction in the memo. One female with whom he wittingly or unwittingly shared his comments was Thompson's wife. The next day, a Saturday, Virginia Toole arrived at work just as Balazs was leaving. He followed her to her office, put his arm around her and asked her to meet him at a local lounge for drinks. He also turned to a friend who was with him and said that she was the lady who was going to get him fired. On Monday, November 9, 1987, he was fired. Ms. Toole had reported his behavior again, and his flagrant actions on the evening of November 6th obviously had not escaped the attention of his supervisors. Although he denies leaving the dead roses and putting his arm around Ms. Toole, Balazs admits that he made a point of opening the entrance gate for the women and conversing with them. He denies that his approaches were improper, but admits that he was counselled repeatedly and was told to ignore the women. He also admits that he knew of no instance where females were overly friendly with other females or males and were not disciplined. His behavior, according to Thompson, was unique, but the company would discipline others of either sex if confronted with the same or similar complaints.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that John Balazs' Petition for Relief from an Unlawful Employment Practice be dismissed. DONE and RECOMMENDED this 1st day of May, 1989, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989. COPIES FURNISHED: John S. Balazs 2007 Dunbar Avenue Melbourne, FL 32901 Wayne L. Helsby, Esquire 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, FL 32801 Margaret Agerton Clerk of the Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750
The Issue The issues in this case are whether Petitioner is entitled to an award of attorney's fees and/or costs, pursuant to section 120.595(4); and, if so, the amounts of attorney's fees and/or costs to which he is entitled.
Findings Of Fact On March 3, 2017, DOAH entered an Amended Final Order in Case No. 16-6127RU, determining that a portion of the Florida Department of Highway Safety and Motor Vehicles Procedure Manual TL-10, dated April 30, 2014, and Technical Advisory RS/TL 14-18, dated October 20, 2014 (hereafter, the "Unadopted Rules"), are unadopted rules that violate section 120.54(1)(a). "Stephen J. Williams, as a Trustee for the Sparkhill Trust," is Petitioner in this proceeding, and also was Petitioner in Case No. 16-6127RU. Petitioner appeared in Case No. 16-6127RU as a trustee of the Sparkhill Trust ("Trust"), which holds title to the motor vehicle for which a certificate of title was denied by Respondent and its agent, the Lee County Tax Collector, in 2014. As previously found in Case No. 16-6127RU, Petitioner also is the beneficiary of the Trust. Petitioner is not licensed to practice law in Florida, and has neither alleged nor shown that he was licensed or otherwise authorized to practice law in Florida at any point during the pendency of Case No. 16-6127RU.2/ Petitioner received a law degree from the University of Connecticut School of Law and is licensed to practice law in Connecticut, New York, and the District of Columbia; however, he currently is suspended from practicing law in those jurisdictions. Petitioner also is a lawyer on the Roll of Solicitors in England and Wales, but is not currently authorized to practice in those jurisdictions because he does not hold a practicing certificate. Petitioner asserts in the Motion that he is an attorney acting in a representative capacity as a trustee on behalf of the Trust. Petitioner filed a document titled "Declaration of Stephen J. Williams in Support of Petitioner's Motion for Attorney's Fees and Costs" ("Declaration") in support of the Motion. Although the Declaration represents that it is made "under penalty of perjury," it does not constitute a legally sufficient oath or affidavit because it does not comply with the requirements of section 92.50(1), Florida Statutes. Specifically, it does not contain a jurat or certificate of proof or acknowledgement authenticated by the signature and official seal of a judge, clerk or deputy clerk of court of record in this state, or a United States commissioner or notary public in this state, as required by the statute.3/ Petitioner attached an itemized timesheet to the Declaration. The timesheet lists, for each item for which attorney's fees are sought, the date and description of the legal services alleged to have been rendered for the particular item, and the amount of time alleged to have been spent per item. The timesheet represents that a total of 54.8 hours were spent in prosecuting Case No. 16-6127RU. Petitioner asserts that he is entitled to a $350.00 per hour attorney's fee, multiplied by a 1.5 loadstar multiplier, and a contingency multiplier of three, for a total of $86,310.00 in attorney's fees. Attached to the Declaration is email correspondence sent to Petitioner by Kiara Guzzo, Respondent's Public Records Coordinator, stating that Petitioner owed $119.73 for Respondent's response to Petitioner's public records request. In the Declaration, Petitioner states that "[t]he attached email of Guzzo email [sic] accurately indicates the out-of-pocket expenses which have been paid." Pursuant to his statement in the Declaration, Petitioner is "exclusively engaged in the practice of law." Pursuant to his statement in the Declaration, Petitioner undertook the prosecution of Case No. 16-6127RU on a contingency basis, with his attorney's fees being "limited to that approved by this tribunal."4/ Petitioner previously challenged the Unadopted Rules in two DOAH proceedings, Case Nos. 14-6005RU and 15-0484RU.5/ Thus, as far back as 2014, Respondent was on notice that its statements (i.e., the Unadopted Rules) may constitute unadopted rules.
The Issue The ultimate issue for determination is whether Respondent discriminated against Petitioner on the basis of her age by failing to provide equal raises in October 1994 and equal termination benefits in August 1995, in violation of Section 760.10(1), Florida Statutes (1997). (All statutory references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner did not appear at the administrative hearing and did not submit any evidence. Respondent seeks attorney fees and costs incurred as a result of Petitioner's failure to comply with the Discovery Order. It is uncontroverted that Petitioner is a female born on November 17, 1929, and a member of a protected class. Respondent employed Petitioner up to her dismissal on August 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on or about August 31, 1995. The Commission's date stamp on the Charge of Discrimination is legible only for the month and year of filing. August 31, 1995, is the deemed date. Petitioner's Charge of Discrimination contains two allegations of age discrimination. First, Petitioner alleges that Respondent discriminated against Petitioner on August 1, 1995, by terminating Petitioner's employment without the same severance pay that Respondent paid to one of Petitioner's co- workers. Second, Petitioner alleges that in October 1994 Respondent failed to give Petitioner the same raise as Respondent gave Petitioner's co-workers in the same position, i.e., a laboratory technician. Time Limits The Charge of Discrimination was timely filed in accordance with the requirements of Section 760.11(1). The filing date of August 31, 1995, fell within 365 days of the earliest alleged discrimination on October 1, 1994. Section 760.11(3) authorized the Commission to issue a determination of reasonable cause within 180 days of August 31, 1995, when the Charge of Discrimination was filed. Counting September 1, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized Commission to determine reasonable cause no later than February 27, 1996. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of February 27, 1996. Counting February 28, 1996, as the first day of the 35-day period and assuming for the benefit of Petitioner that February 1996 had only 28 days, Section 760.11(7) required Petitioner to file a request for hearing no later than April 3, 1996. Petitioner did not timely file her request for administrative hearing. Petitioner first requested an administrative hearing in the Petition for Relief filed on September 10, 1997. Petitioner filed her request for hearing approximately 525 days late and 560 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. Fees and Costs The Commission referred the request for hearing in the Petition for Relief to DOAH on October 16, 1997. On November 3, 1997, Respondent filed its Answer and Affirmative Defenses and its Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and Alternative Motion for More Definite Statement with Incorporated Memorandum of Law in Support Thereof (respectively, the "Motion to Dismiss" and "Motion for More Definite Statement"). On October 17, 1997, Respondent served Petitioner with copies of the Motion to Dismiss and Motion for More Definite Statement by United States Mail. Petitioner did not file a response to the Motion to Dismiss and Motion for More Definite Statement within 12 days of the date of service, or anytime thereafter. On November 18, 1997, an Order to Show Cause required Petitioner to file no later than December 15, 1997, a written response stating why the relief requested by Respondent should not be granted. A Notice of Hearing issued on the same date scheduled the administrative hearing for February 9, 1998. On December 8, 1997, Petitioner filed her written response to the Order to Show Cause but did not serve a copy on Respondent. On December 30, 1997, a Notice of Ex Parte Communication provided Respondent with a copy of Petitioner's written response and reminded each party to serve the opposing party with copies of any documents filed with DOAH. On January 15, 1998, Respondent filed a renewed Motion to Dismiss and Motion for More Definite Statement and requested a continuance of the administrative hearing on the ground that Respondent had not received a copy of Petitioner's response to the Order to Show Cause until the first week in January. Petitioner did not respond to either of the renewed motions or to the motion for continuance. On February 3, 1998, the ALJ continued the hearing to a date to be agreed upon by the parties during a telephone hearing scheduled for February 9, 1998. The telephone hearing was scheduled to hear oral argument on Respondent's pending motions and as a case management conference. At the outset of the telephone conference conducted on February 9, 1998, Petitioner stated that she did not wish to proceed without counsel. Petitioner represented that she had been attempting to obtain counsel, without success, and requested additional time in which to obtain counsel. Attorney Robert Hosch, Petitioner's nephew, participated in the motion hearing on February 9, 1998, for the limited purpose of representing that he would assist Petitioner in obtaining counsel. The ALJ granted Petitioner's request for additional time; reserved ruling on Respondent's pending motions for disposition after hearing oral argument during a telephone conference rescheduled for March 2, 1998; instructed Petitioner to have her attorney file a notice of appearance no later than February 19, 1998, and a response to Respondent's renewed Motion to Dismiss and Motion for More Definite Statement no later than March 2, 1998. Pursuant to the agreement of the parties during the telephone conference, the ALJ scheduled the administrative hearing for April 28, 1998. On February 23, 1998, an Order Continuing and Rescheduling Formal Hearing memorialized the foregoing matters. On March 2, 1998, the parties and Mr. Hosch participated in another telephone conference concerning Respondent's Motion to Dismiss and Motion for More Definite Statement. Mr. Hosch stated that he did not represent Petitioner but was assisting her in obtaining counsel. Petitioner requested additional time in which to obtain counsel. The ALJ required Petitioner to file a more definite statement and a notice of appearance from her attorney, if any, no later than March 12, 1998. The ALJ instructed the parties and Mr. Hosch that failure to file a more definite statement and any notice of appearance on or before March 12, 1998, would result in dismissal of the proceeding. On March 6, 1998, an Order Granting Motion for More Definite Statement memorialized the rulings and instructions entered during the March 2 telephone conference. On March 13, 1998, Petitioner filed a one-page letter purporting to be a more definite statement. On March 16, 1998, the undersigned entered a Recommended Order of Dismissal. On April 5, 1999, the Commission entered an Order Remanding Case to Administrative Law Judge for Further Proceedings on the Merits (the "Remand"). In relevant part, the Remand concluded that the Recommended Order of Dismissal denied Petitioner her right to represent herself and that it was an abuse of discretion to do so. The Remand stated, in relevant part: An examination of the DOAH file discloses that Petitioner attempted to file a more definite statement by letter dated 3/11/98, and received by DOAH 3/13/98. It is not known why the Judge does not refer to this letter in his Order. Perhaps it was ignored because it was received one day late. If so, this only strengthens the Commission's finding that the Petitioner was deprived of an essential due process requirement of Florida law, and the Judge abused his discretion. . . . it is necessary that there be a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard of the order. Petitioner's argument . . . is probably strong enough by itself to remand the Recommended Order, at least on the issue of willful or deliberate default. Remand at fourth unnumbered page. On April 19, 1999, an Order Reopening File required the parties to file a status report no later than May 17, 1999. The Order expressly stated that failure to timely file a status report would result in the dismissal of the case. Neither party timely filed a status report. On May 20, 1999, Respondent filed Respondent's Status Report requesting rulings on the original and renewed Motion to Dismiss and Motion for More Definite Statement and requesting the administrative hearing to be scheduled after January 1, 2000. Petitioner never filed a status report and did not respond to Respondent's request for rulings on the pending motions. On June 9, 1999, the ALJ entered an Order Denying Dismissal. The Order denied Respondent's original and renewed Motion to Dismiss and Motion for More Definite Statement. On the same date, a Notice of Hearing scheduled the administrative Hearing for September 28 and 29, 1999, and a Prehearing Order required the parties to comply with several requirements incorporated herein by this reference. On June 25, 1999, Respondent filed Respondent's Motion for Continuance of the hearing scheduled for September 28-29, 1999, on the ground that counsel for Respondent was scheduled for a four-week trial in circuit court beginning September 21, 1999. Petitioner never responded to the Motion for Continuance. An order dated July 13, 1999, rescheduled the administrative hearing for January 20 and 21, 2000. On November 16, 1999, Respondent served Petitioner with Respondent's First Set of Interrogatories and Respondent's First Request for Production of Documents. Petitioner neither objected to nor answered either discovery request. On November 30, 1999, Respondent served Petitioner with a Notice of Taking Deposition Duces Tecum on December 16, 1999. On December 1, 1999, Petitioner filed a letter requesting a continuance of the administrative hearing and an extension of time to respond to discovery and to attend the deposition. In relevant part, the letter stated that Petitioner continues: . . . to have difficulty finding counsel who will assist me on a contingency fee basis . . . . At this time, it would be impossible for me to pay an attorney for his or her time in assisting me. For the same reason, I am requesting that each of the parties' discovery efforts be halted for a short period of time, in order that I might find counsel to help me with my responses and to attend my deposition. I do understand that the Respondent has a right to gather information about my claim and I plan to fully cooperate with those efforts. However, I need the assistance of an attorney in preparing my case and representing me at deposition and at the hearing. I am diligently trying to secure counsel and I only seek a reasonable continuance of the hearing and of pending discovery. . . . Please allow at least a few extra months before the hearing date and allow me at least an additional month to respond to the Respondent's discovery requests and to attend my deposition, which is currently scheduled for mid-December, 1999. . . . On December 10, 1999, Respondent filed Respondent's Objection to Petitioner's Request for Continuance and Rescheduling of Formal Hearing and Request for Stay of Discovery. On December 14, 1999, Respondent filed Respondent's Limited Withdrawal of Objection to Continuance and Amended Response to Request for Continuance. Respondent agreed to a continuance of the hearing for one month but objected to any extension of the time for responding to discovery requests or for taking the deposition. An order dated December 17, 1999, rescheduled the administrative hearing for February 28 and 29, 2000, and denied Petitioner's request to stay discovery while she sought counsel. Counsel for Respondent made reasonable efforts to conduct discovery at Petitioner's convenience. Subsequent to November 30, 1999, when Respondent's counsel scheduled Petitioner's deposition for December 16, 1999, Petitioner contacted Respondent's counsel to reschedule the December 16 deposition because Petitioner was recovering from a cold. Respondent's counsel rescheduled the deposition for January 4, 2000, and specifically obtained Petitioner's approval of the January 4th-deposition date. During the week of December 27, 1999, Petitioner contacted Respondent's counsel and represented that Petitioner was scheduled to have surgery to remove cancer from Petitioner's mouth on January 3, 2000. Petitioner stated that she would not be able to talk for several weeks and would not be able to appear at the January 4th deposition. Respondent's counsel agreed to reschedule the deposition if Petitioner would provide written confirmation of the scheduled surgery from Petitioner's physician. Petitioner never provided the written confirmation. Respondent's counsel re-noticed Petitioner's deposition for January 17, 2000. Respondent's counsel obtained Petitioner's specific approval of the new deposition date before scheduling the deposition. Petitioner failed to appear for her deposition on January 17, 2000, and Respondent's counsel rescheduled the deposition for February 2, 2000. Respondent's counsel made several requests by telephone to obtain Petitioner's answers to interrogatories and Petitioner's response to the request to produce. Both discovery requests had been served on November 16, 1999. Petitioner never objected to or answered Respondent's interrogatories and never objected to or produced the requested documents. On January 10, 2000, Respondent's counsel filed a Motion to Compel and Motion for Sanctions; and Respondent's Motion to Compel Appearance at Deposition and Responses to Discovery and Motion for Sanctions. The Discovery Order (dated January 28, 2000) reserved ruling on the request for sanctions until an evidentiary hearing could be conducted during the administrative hearing scheduled for February 28, 1999. However, the Discovery Order granted the request to compel Petitioner's appearance at the deposition scheduled for February 2, 2000; required Petitioner to bring to the deposition her answers to interrogatories and any documents in response to Respondent's request to produce; and required Petitioner to file her Prehearing Statement in accordance with the requirements of the Prehearing Order entered on June 9, 1999. On January 28, 1999, the administrative assistant for the ALJ telephoned Petitioner and read paragraphs 1-7 of the Discovery Order. On the same date, Respondent's counsel caused a copy of the Discovery Order to be hand-delivered to Petitioner's residence. Petitioner was not home, and the courier posted the Discovery Order on the front door of Petitioner's residence. On January 29, 2000, Respondent's counsel personally hand-delivered a copy of the Discovery Order to Petitioner at Petitioner's residence and informed Petitioner of the Order's contents. On February 2, 2000, Petitioner failed to appear for her deposition. Petitioner never filed her answers to interrogatories, never filed the documents sought in Respondent's request to produce, and never filed a Prehearing Statement. Respondent's counsel telephoned Petitioner to confirm that Petitioner would be attending a prehearing conference that had been previously scheduled in accordance with the requirements of the Prehearing Order entered on June 9, 1999. Petitioner stated that she would not attend the prehearing conference. When Respondent's counsel asked why Petitioner would not attend the prehearing conference, Petitioner hung up without explanation. When counsel for Respondent made additional attempts to coordinate a prehearing conference, Petitioner refused to speak to counsel for Respondent. Petitioner's refusal to appear at deposition, answer interrogatories, produce documents, and participate in a prehearing conference individually and collectively prejudiced Respondent's ability to prepare a defense. Petitioner's refusal denied Respondent relevant and material information including the identity of Petitioner's witnesses and exhibits as well as Petitioner's current employment and earnings. Petitioner's refusal deprived Respondent's counsel of the ability to fully perform her duties and responsibilities to her client. Respondent incurred attorney's fees and costs as a result of Petitioner's refusal to appear at deposition, answer interrogatories, and produce documents. Respondent incurred court reporter costs of $169.15 as a result of Petitioner's refusal to appear at any of her depositions. Respondent incurred attorney's fees of $499.75 as a result of Petitioner's refusal to appear at her first deposition. Respondent incurred attorney's fees of $1,870.50 as a result of Petitioner's failure to appear at her second deposition, answer interrogatories, and produce documents; and as a result of various motions filed to obtain Petitioner's attendance at deposition and Petitioner's responses to discovery requests. Petitioner willfully and deliberately disregarded the requirements of the Discovery Order. In relevant part, paragraph 6 in the Discovery Order stated: In the absence of competent and substantial evidence of good cause submitted by Petitioner, the failure of Petitioner to timely comply with the requirements of this Order shall be "equivalent to willfulness or deliberate disregard of the order [quoting from the Remand]." Upon Respondent's timely motion and showing of good cause for imposing sanctions, such failure by Petitioner shall subject Petitioner to the imposition of appropriate sanctions including the assessment of fees and costs, the preclusion of evidence, and the dismissal of this proceeding. Petitioner had adequate notice of the terms of the Discovery Order and the opportunity to show good cause for her failure to comply with the Discovery Order. On January 28, 2000, the administrative assistant for the ALJ read to Petitioner over the telephone the contents of paragraphs 1-7 of the Discovery Order. Petitioner received a copy of the Discovery Order on January 28 and 29, 2000. On January 29, 2000, Respondent's counsel explained the Discovery Order to Petitioner. Petitioner chose not to comply with the Discovery Order. Petitioner neither appeared at the administrative hearing to present evidence to prove the merits of her case nor appeared to present evidence to show why the sanctions requested by Respondent should not be granted. Monetary sanctions are appropriate in this case and commensurate with the offense. Dismissal and the preclusion of evidence are neither appropriate nor adequate sanctions because Petitioner did not appear at the administrative hearing and did not present any evidence. Respondent's counsel was required by law and the rules of ethics to make every reasonable effort to prepare an adequate defense of her client for presentation at the administrative hearing. Dismissal is not appropriate for other reasons. The Commission reversed a previous dismissal in this case and remanded the case in an effort to ensure Petitioner's right to represent herself. After the remand, Petitioner sought additional time to obtain counsel. Relevant orders allowed Petitioner additional time to obtain counsel; afforded Petitioner the right to represent herself during discovery, in accordance with the purpose of the Remand; and attempted to balance the competing interests of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as untimely filed; finding that Respondent did not discriminate against Petitioner; denying Petitioner's Charge of Discrimination and Petition for Relief; and imposing monetary sanctions against Petitioner in the aggregate amount of $2,539.40. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Janet M. Courtney, Esquire Lowndes, Drosdick, Doster, Kantor and Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Margaret H. Wilson 5532C Cinderlane Parkway Orlando, Florida 32808
The Issue The issue is whether Respondent's decision to reject all replies to Invitation to Negotiate 2019-44, Social Media Monitoring (ITN), is arbitrary or illegal, within the meaning of section 120.57(3)(f), Florida Statutes.
Findings Of Fact In response to the tragic shootings at Marjorie Stoneman Douglas High School in February 2018, the legislature enacted, effective March 9, 2018, the Marjorie Stoneman Douglas High School Public Safety Act (the Act). Among other things, the Act authorizes Respondent to spend $3 million for the 2018-19 fiscal year "to competitively procure . . . [a] centralized data repository and analytics resources pursuant to s. 1001.212, Florida Statutes[,]" and provides that Respondent "shall make such resources available to the school districts no later than December 1, 2018." Ch. 2018-3, §§ 50 and 52, Laws of Fla. Within one month after the passage of the Act, Respondent confirmed that the above-quoted language mandated the procurement of two systems and that "analytics resources" refers to the Monitoring Tool. Respondent researched the relevant technology and drafted an ITN, which it issued on August 3, 2018. In general, the ITN requires each vendor to submit, by September 6, 2018, a reply consisting of a technical reply and a price reply and provides that Respondent will evaluate the replies by September 10, 2018. ITN section 3.4 states that the Negotiation Committee will commence negotiations on or about September 24, 2018, and the winning vendor or vendors will commence work on October 19, 2018. ITN section 8.1.2, which contains the "Criteria for Evaluation," states that Respondent will score each reply based on a maximum of 70 points for the technical reply and 30 points for the price reply. Section 8.1.2 states that, after negotiations, Respondent anticipates awarding the contract, if any, to not more than three vendors that Respondent has determined provide the best value to the state. ITN section 8.3 provides that, after Respondent awards a contract to each of up to three vendors, "[s]chool districts will then choose from these approved vendors to determine which [Monitoring Tool] is used in their district." ITN section 8.1.3, which contains the "Criteria for Negotiations," broadly authorizes Respondent to negotiate revisions to each vendor's technical reply, as required to serve the best interest of the state. Section 8.1.3.E. also authorizes Respondent to revisit each vendor's price reply: "[Respondent] reserves the right to negotiate different terms and related price adjustments if [Respondent] determines that it is in the state's best interest to do so." ITN Attachment B is the "Price Reply." The first paragraph of Attachment B states: "There shall be no additional costs charged for work performed under this ITN. The [school] district price on this page will be used for evaluation and scoring purposes." The second paragraph, which is titled, "Assessment Instrument," adds: "Respondent shall provide a cost for the Social Media Monitoring instrument and services in subsequent contract." Immediately below this statement is the following price form: Description Cost Social Media Monitoring Contract 10/19/18-6/30/19 $ instrument and services Period 7/1/19-6/30/20 $ 2018-2021 7/1/20-6/30/21 $ Social Media Monitoring Optional 7/1/21-6/30/22 $ instrument and services Renewal 7/1/22-6/30/23 $ Years 7/1/23-6/30/24 $ Grand Total Cost* $ $ The price form fails to reveal if the "Grand Total Cost" and annual costs are per-district prices or gross prices, regardless of the number of school districts choosing to use the Monitoring Tool. The asterisk is meaningless because the ITN contains no explanation as to its meaning. The second blank line to the right of "Grand Total Cost" is consistent with an extension of a per-district price, but the document does not direct the vendor to perform such an extension, which would be impossible because, as noted above, the multiplier is unknown until districts contract to use a specific Monitoring Tool. On August 22, 2018, Respondent issued ITN Addendum #1, which answers questions posed by vendors. Through this means, Respondent informed vendors that school districts are not required to use the Monitoring Tool, Addendum #1, p. 3; it is impossible to determine the volume of usage of the Monitoring Tool among over 4000 schools serving about 3 million students, Addendum #1, p. 3; replies may include more detailed pricing schedules, such as "pricing based on differing user counts and/or number of schools or districts," Addendum #1, p. 4; and the Monitoring Tool may be used by as many as 67 school districts plus six university-affiliated lab or charter schools, Addendum #1, p. 6. On August 30, 2018, Respondent issued ITN Addendum #2, which makes two changes to Attachment B. Addendum #2 deletes the second blank line to the right of "Grand Total Cost" and explains the asterisk by stating, "Points awarded will be based on this price." Neither change resolves the ambiguity as to whether the quoted prices are per-district or gross prices. Eight vendors, including Petitioner, timely submitted replies. Petitioner is a responsible vendor and its reply is responsive. It appears that Respondent completed scoring of all of the technical and price replies of the eight vendors in substantial conformity with the September 10 deadline stated in the ITN. As provided by the ITN, five of Respondent's employees scored the technical replies, staff scored the price replies, and the five employees who scored the technical replies formed the negotiating team. One of the technical evaluators failed to discharge his responsibilities. Appearing not to have read or understood the basics of Petitioner's reply, which describes a Monitoring Tool already in use by several Florida school districts, the evaluator wrongly concluded that Petitioner's reply did not offer a Monitoring Tool and improperly assigned a low score to its reply. This evaluator abruptly quit the day after turning in his evaluations, and Respondent's negotiating team was reduced to the four remaining evaluators. Based on the scoring of the replies, Respondent selected three vendors with which to negotiate: Abacode, Veratics, Inc. (Veratics), and NTT Data Inc. (NTT Data). Abacode resolved the ambiguity of the price form in Attachment B by adding to the price form language stating that its price is a per-district price. For the three years of the base contract and three optional renewal years, Abacode's "Per-District Grand Total Cost" was $68,350, meaning that, even ignoring the lab schools, the gross price would slightly exceed $4.5 million, if all 67 school districts chose Abacode's Monitoring Tool for six years. Abacode offered a 15% discount in the unlikely event that all 73 school districts and lab schools chose to use its Monitoring Tool. Veratics did not alter the price form and offered a "Grand Total Cost" of $143,325.18 for the three years of the base contract and three optional renewal years. This appears to be a per-district price, so the gross price would slightly exceed $9.6 million, if all 67 school districts chose Veratics' Monitoring Tool for six years. NTT Data likewise completed the price form without alterations, showing a "Grand Total Cost" of $88,454 for the three years of the base contract and three optional renewal years. An additional page entitled, "Additional Pricing Detail" confirms that the "Grand Total Cost" is a per-district price, so the gross price would slightly exceed $5.9 million, if all 67 school districts chose NTT Data's Monitoring Tool for six years. Negotiations with the three vendors commenced in late October 2018. During negotiations, Respondent's negotiating team realized that the ITN failed to convey adequately Respondent's requirement to receive the notifications that the Monitoring Tool transmits to the contracting school district, as vendors had not included this service in their price replies. At some point, the negotiating team also realized that the price form was ambiguous as to per-district or gross pricing. On November 13, 2018, Respondent's procurement officer sent to a member of the negotiating team a draft revised price form that specified per-district pricing for the base years, but not for the optional renewal years. After further revisions by the recipient of the email, Respondent distributed a revised price form to the three vendors, but not the five vendors that it had not selected for negotiations. As applicable to both the base and optional renewal periods, the revised price form requires an annual price for notifications to Respondent; a one-time price for the "Initial Districts [sic] first six (6) months"; and "Costs per additional district," which are classified by "Small," "Medium," and "Large." The revised price form also includes a list of all 67 districts with their 2017-18 enrollments and classifies each district as "Small," "Medium," or "Large." The three vendors timely submitted revised price replies with the following "Grand Total Costs": Abacode-- $4.6 million, Veratics--$34.4 million, and NTT Data--$6.0 million. The price replies of Abacode and NTT Data increased by relatively modest amounts, but the price reply of Veratics, which increased by nearly $25 million over the six years of the procured service, itemized about $5.5 million for the first year. Hurdling past the $3 million authorized for the procurements of the Monitoring Tool and a centralized data repository, Veratics implicitly eliminated itself as a vendor. On December 10, 2018--nine days after the statutory deadline for making the Monitoring Tool(s) available to school districts--Respondent issued a Notice of Intent to Award the contract to Abacode. Petitioner timely filed a Notice of Protest and Formal Written Protest, which includes a Petition for Administrative Hearing. The petition details, among other things, the ambiguity in the original price form as to per-district or gross pricing and alleges that Respondent failed to perform the necessary conversions to compare price replies accurately. Addressing the negotiations, the petition notes, among other things, that the three selected vendors were allowed to change their price replies and submitted what the petition describes only as "higher" pricing--certainly, a charitable understatement as applied to Veratics. For relief, Petitioner requested recommended and final orders directing that Respondent award the contract to Petitioner, "or, alternatively, that [Respondent] reject all Replies and conduct a new procurement." On January 3, 2019, Respondent did just that: Respondent issued an Amended Agency Decision rejecting all replies and advising that it would reissue the ITN in a second attempt to procure the Monitoring Tool. However, Petitioner timely filed a Second Notice of Intent to Protest and Formal Written Protest, as well as the Petition, which, as noted above, requests a recommended order awarding the contract to Petitioner. Due to the school-safety issues involved in the subject procurement, Commissioner of Education Richard Corcoran issued a memorandum on February 13, 2019, authorizing Respondent to proceed with the second procurement "to avoid an immediate and serious danger to the public health, safety or welfare," as provided by section 120.57(3)(c). On the same date, Governor Ron DeSantis issued Executive Order 19-45, which, among other things, characterizes as "unacceptable" Respondent's failure to meet the December 1 statutory deadline and orders Respondent to "immediately take any and all steps necessary to implement [the Act] to provide . . . [the Monitoring Tool] . . . by August 1, 2019." The new invitation to negotiate is similar to the ITN, except that its definition of "Notifications" in the scope of services clearly defines the need to transmit notifications to Respondent, as well as to the contracting school district, and the price form in Attachment B bases the evaluation on gross prices. Respondent's decision to reject all replies is supported by five facts: 1) the irrational scoring of Petitioner's reply by one evaluator; 2) the potential confusion caused among potential vendors, including the eight vendors that submitted replies, by the ambiguity contained in the price form in Attachment B; 3) the revision of the price form for the three selected vendors to clarify that the pricing was on a per-district basis; 4) the effective loss of one of the three selected vendors upon receipt of pricing replies to the revised price form; and 5) the capacity to resolve the then-pending protest by acceding to Petitioner's demand for a reject-all decision. As for the first reason, Petitioner objected at hearing to testimony from one of Respondent's witnesses pertaining to this matter because, on deposition, Respondent's agency representative failed to identify the irrational scoring as a factor in the reject-all decision. As discussed in the Conclusions of Law, section 120.57(3)(f) requires a determination of whether an agency's reject-all decision "is," not "was," arbitrary. Thus, all facts may be considered, regardless of whether an agency witness cited them in a deposition or, more broadly, whether an agency cited them at the time of making the reject-all decision. Additionally, despite the failure of the deposition witness to identify this factor, Petitioner mentioned in the Pre-hearing Stipulation "incorrect evaluations" by at least one evaluator, so Petitioner was aware of this basis for the reject-all decision, even though Petitioner may not have been aware that Respondent relied on this factor in making the reject-all decision. As for the third reason, as noted above, the ITN permits Respondent to negotiate new items and, if so, obtain revised price replies from the vendors with which it is negotiating. These provisions cover the addition of the notification to Respondent, which Respondent substantially omitted from the ITN. However, resolution of a basic element of any bid2/ solicitation--here, whether the price form calls for per-district or gross pricing--does not fall within these provisions, so Respondent's decision to provide this revision only to the three selected vendors raises competitive concerns. As for the fourth reason, the ITN permits Respondent to have selected two vendors for negotiations in the first place. But this does not mean that the effective loss of a selected vendor is not available as a legitimate reason to reject all replies. Also, Veratics' jarring price increase indicates either that one of the successful vendors failed to appreciate the scope of the procurement or did not wish to participate in the procurement any further--either reason signaling a potential problem with the procurement, so that Respondent rationally may have decided to reject all replies. As for the fifth reason, Respondent had already missed the December 1 statutory deadline, and a reject-all decision represented the quicker route to completing this procurement because of the above-cited flaws in the initial procurement; the school-safety issue, which authorizes the immediate commencement of a second procurement for the Monitoring Tool; and, as discussed in the Conclusions of Law, a reject-all decision is easier to defend than an award decision. In the Pre-hearing Stipulation, Petitioner requested relief in the form of a reopening of the procurement process following a clarification from Respondent--presumably, as to the pricing ambiguity in the original price form and the need to provide notifications to Respondent; an opportunity for all eight vendors to submit new replies; and the scoring of the new replies. First, Petitioner did not seek this relief in its initial petition protesting the award decision or even in the Petition protesting the reject-all decision. So, when making the reject-all decision, Respondent was acceding to the only alternative posed by Petitioner that did not result in an award to Petitioner. By doing so, as explained above, Respondent rationally pursued an expeditious resolution of the then-pending protest and, thus, the procurement of the Monitoring Tool. Had Respondent chosen an option not presented by Petitioner, Respondent had no assurance that its choice would have induced Petitioner to dismiss its first protest. Second, even if Respondent should have assumed that a restart of the first procurement would have resolved Petitioner's then-pending protest, as it accomplishes the same thing as a reject-all decision followed by a rebid, the focus is on whether Respondent made a rational choice, not whether it made the best choice. By this point, at least, Respondent was trying to hurry along the procurement, and a reject-all decision would achieve this end, even if a restart of the first procurement might have been resulted in an earlier award. Under the circumstances, Respondent's decision in January 2019 to cut its losses and reject all replies, clean up the documents, and rebid the procurement is not arbitrary. As discussed in the Conclusions of Law, no further analysis is required of Petitioner's claim that the reject-all decision is arbitrary for the additional reason that the sequence of events--an award decision, a reject-all decision, and a rebid--has resulted in the disclosure of each vendor's reply and undermined the integrity of the procurement process. The point is that the reject-all decision is rational--not, as discussed above, whether Respondent could have made a better decision or, in connection with a claim of arbitrariness, whether the effect of the agency's decisionmaking sequence may also have undermined the integrity of the procurement process.
Recommendation It is RECOMMENDED that the Department of Education enter a final order dismissing the Petition. DONE AND ENTERED this 17th day of April, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 17th day of April, 2019.
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
