The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 10th day of January, 2003.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 16, 2005.
Findings Of Fact Stipulated Facts Petitioner was hired by TPB as a premise sales representative for TPB's office in Gainesville, Florida on or about April 3, 2006. Petitioner and other new hires attended TBP's new hire sales training course in Jacksonville, Florida, on or about April 3, 2006. Petitioner and the other newly hired employees were required to establish employment eligibility in accordance with the Employment Eligibility Verification Form, Form I-9. For Form I-9 purposes, Petitioner produced a driver’s license and social security card. The social security card had the following notation: “For Social Security and Tax Purposes: Not for identification.” TPB informed Petitioner that it could not accept the social security card he produced for purposes of fulfilling his Form I-9 requirements. TPB asked Petitioner to provide it with any other document(s) to satisfy his Form I-9 requirements. TPB informed Petitioner that he could go to the local social security office in Jacksonville to request a new social security card and/or obtain a letter from the social security office that indicated he had applied for same. No other new hire in Petitioner’s training class provided TPB with a social security card with the same notation that appeared on Petitioner’s card. TPB requested Petitioner to provide an acceptable document from List A, B, or C found on the back of Form I-9. Petitioner provided TBP with a copy of a Birth Registration Form. The Birth Registration Form was not a document listed in List A, B, or C referenced on Form I-9. At the time Petitioner was hired by Respondent, TPB had policies that prohibited, among other things, discrimination on the basis of race and national origin. Petitioner was aware that TPB had anti-discrimination policies in place. Petitioner’s employment with TBP ended on or about April 6, 2006. TPB informed Petitioner that his employment was terminated because he was unable to provide sufficient proof of employment eligibility with regard to Form I-9. Petitioner cannot identify any similarly situated TPB employees outside of his protected class who were treated more favorably. Facts Based Upon the Evidence of Record Petitioner is a black male who was born in Jamaica. He became a citizen of the United States sometime after arriving in this country in 1978.1/ Respondent, TPB, is an employer within the meaning of the Florida Civil Rights Act. TPB is the brand name or logo for White Directory Publishers, which publishes telephone directories. At the time Petitioner was hired, Terry Strickland was a regional sales trainer for TPB. He conducted the training course in Jacksonville for the group of new hires which included Petitioner. At the time of the training session, Mr. Strickland was not aware of Petitioner’s national origin. During the training course in Jacksonville, all new hires, including Petitioner, were required to complete a human resources packet and review PowerPoint presentations regarding TPB policies, including its anti-discrimination policy. The human resources packet included Form I-9. When Mr. Strickland received Petitioner’s social security card and observed the notation on the bottom, he informed Petitioner that TPB would not be able to accept the card for Form I-9 purposes. He then informed Petitioner that he could go to the local social security office during lunch to apply for a new card. While Petitioner went to the local social security office, he was unable to obtain a new card or a letter from that office as he did not have proper documentation with him to secure a new card. Mr. Strickland handled this matter with other new hires in other training sessions in the same manner. That is, any time he was presented with a social security card with the notation “not for identification purposes,” he has informed the person that the card is not an acceptable document for Form I-9 purposes and that other acceptable documents would have to be provided. Mr. Strickland also informed Petitioner that a birth certificate would be acceptable. However, when presented with Petitioner’s Birth Registration Form, he noted that it did not have a seal. Therefore, he faxed it to Susan Ruhland at TPB’s corporate headquarters in Buffalo, New York. Susan Ruhland is the human resources manager for Respondent. Ms. Ruhland was contacted by Mr. Strickland regarding Petitioner’s social security card. Ms. Ruhland spoke to Petitioner by phone and explained to him that his social security card was not acceptable based on requirements of the Department of Homeland Security. She also informed Petitioner that there are other means of identification or documentation that can be provided to satisfy Form I-9 requirements. Ms. Ruhland was not aware of Petitioner’s national origin when she spoke to him by telephone. Ms. Ruhland contacted the Department of Homeland Security to verify her understanding that Petitioner’s social security card was unacceptable for Form I-9 purposes. She received confirmation that her understanding was correct. Other than the Birth Registration Form supplied by Petitioner, Petitioner was not able to provide any other document to satisfy the Form I-9 requirements. He had recently applied for a passport and had sent original documents with his passport application. Ms. Ruhland could not accept the Birth Registration Form provided by Petitioner because it was not issued by a state, county, municipal authority or outlying possession of the United States, and it lacked an official seal. She informed Petitioner that if he could not provide the acceptable documentation within three days, that he would have to be dismissed. Employees of TPB in previous training courses of different races and national origins who submitted social security cards with the same notation that appears on Petitioner’s were treated in the same manner as Petitioner. Specifically, during the period of 2004 to August 2007, 17 new employees of TPB were asked to submit another document that fulfilled the Form I-9 requirements or go to the social security office to apply for a new card. Of those 17 employees, 12 were Caucasian, three were African-American, one Hispanic, and one American Indian/Alaskan Native. Mr. Strickland informed Petitioner on or about April 6, 2007, that TPB had to terminate his employment because he was unable to provide sufficient proof of employment eligibility with regard to Form I-9. There was no competent evidence presented that establishes that Petitioner’s termination was based on race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
The Issue Whether the Respondent, the Department of Revenue, acted in a fraudulent, arbitrary, illegal or dishonest manner in deciding to award a contract to the Intervenor, Recognition Equipment Incorporated, based upon the Intervenor's response to Request for Proposal No. 90/91-261?
Findings Of Fact The Parties. The Respondent, the Department of Revenue (hereinafter referred to as the "Department"), is an agency of the State of Florida. On or about June 24, 1991, the Department issued Request for Proposal on No. 90/91-261 (hereinafter referred to as the "RFP"). The Petitioner, Scan-Optics, Inc. (hereinafter referred to as "Scan- Optics"), is an unsuccessful responder to the RFP. The Intervenor, Recognition Equipment Incorporated (hereinafter referred to as "REI"), is the successful responder to the RFP. Scan-Optics and REI have standing to participate in this proceeding. Development of the RFP. For a number of years prior to the formal hearing of this case, the Department has been interested in purchasing optical scanning equipment for use in processing certain tax returns filed with the Department. The Department made inquiries and performed investigations concerning available optical scanning equipment as a result of its interest in the equipment. The Department contacted private producers of optical scanning equipment, including Scan-Optics and REI, and other state agencies that already had acquired optical scanning equipment. The Department observed Scan-Optics and REI optical scanning equipment in use by purchasers of the equipment in Florida and other States. During the Spring of 1991, the Department's budget was sufficient to allow the Department to purchase optical scanning equipment and the Department actually began to plan for such a purchase. The Department ultimately decided to acquire the equipment through a request for proposal instead of an invitation to bid because the Department knew what function the equipment was to serve but not how best to fulfill this function. James R. Evers, the Assistant Director of the Department's Division of Tax Processing, was assigned responsibility for drafting the specifications for the equipment to be acquired through the request for proposal. Mr. Evers travelled to several States with agencies that already had acquired optical scanning equipment, observed the equipment in use and discussed the equipment with personnel familiar with the equipment. Mr. Evers acquired and reviewed the specifications used in Florida and in other States in purchasing optical scanning equipment. Mr. Evers acquired requests for proposals and invitations to bid from other States and reviewed them. After preparing the specifications for the equipment to be included in the RFP, the Department submitted the specifications to the Information Technology Resource Procurement Advisory Council (hereinafter referred to as the "ITRPAC"). The ITRPAC was created pursuant to Section 287.073(5), Florida Statutes, and is composed of the Director of the Division of Purchasing of the Department of General Services, the executive administrator of the Information Resource Commission and the Director of the Governor's Office of Planning and Budgeting. The ITRPAC, pursuant to the duty imposed on it by Section 287.073(5)(b), Florida Statutes, reviewed and approved the Department's specifications. The weight of the evidence failed to prove that the Department's actions in drafting the RFP were fraudulent, arbitrary, illegal or dishonest. Issuance of the RFP. On June 24, 1991, the Department issued the RFP, No. 90/91-261, "Scanning Equipment Operation". Scan-Optics reviewed the RFP and concluded that several of the requirements of the RFP were product-specific; that only REI's equipment could meet some of the specifications. Based upon Scan-Optics' concerns, Scan-Optics sent a letter to the Department objecting to the RFP as "being a directed procurement to an individual company, namely Recognition Equipment Incorporated." In particular, Scan-Optics questioned why the features on pages 10 through 13 "which define a single vendor's product specifications . . . " were "mandatory" features. Scan- Optics requested that all REI-specific requirements be removed from the RFP. Pursuant to the RFP, a pre-proposal conference was held by the Department on July 16, 1991. This conference was attended by, among others, representatives of Scan-Optics and REI. The purpose of the pre-proposal conference was to provide written responses to written questions submitted by prospective vendors. Prospective vendors were informed through provisions of the RFP of the following concerning modifications to the RFP: Any question concerning the RFP was required to be submitted in writing. No interpretation of the RFP would be considered binding unless issued in writing by the Department. See paragraph 5 of the General Conditions of the RFP. Paragraph 5 of the General Conditions of the RFP also provided that protests to any part of the RFP were to be filed in writing as specified in Rule 13A-1.006, Florida Administrative Code. Section 1.4 of the RFP provided the following: No negotiations, decision, or action shall be initiated or executed by the offeror as a result of any discussions with any Department employee. Only those communications which are in writing from the purchasing office may be considered as a duly authorized expression on behalf of the Department. During the pre-proposal conference written questions that had previously been submitted by prospective vendors, including Scan-Optics' question concerning the "mandatory" features of section 3 of the RFP, and the Department's written responses thereto were distributed. Some discussion of the questions and responses also took place and some oral questions were answered. During the pre-proposal conference the Department's representative answered specific questions concerning the Department's desire to acquire "full multifont, set upper case, lower case alpha/numeric and hand print" capability. The questions to, and the comments of, the Department's representative during the pre-proposal conference were not reduced to writing or otherwise included in the RFP. Although the Department answered the oral questions asked during the pre-proposal conference, the Department's answers were not inconsistent with the intent of the Department evidenced in the RFP as discussed, infra. The evidence failed to prove that the Department's actions during the pre-proposal conference were fraudulent, arbitrary, illegal or dishonest in light of the clear directions of the RFP concerning modifications thereto being in writing. In response to Scan-Optics' initial complaint about the RFP, the Department changed its "mandatory" features, beginning at Section 3.2 of the RFP, to "desired" features. This the Department did through the issuance of Addendum No. 1, which was issued by the Department after the pre-proposal conference on July 17, 1991, and included all written questions submitted prior to the conference and the Department's responses thereto. No other written modification to the RFP was made by the Department other than Addendum No. 1 and the attached written questions and responses. Other than the questions raised by Scan-Optics concerning the vendor- specific issue and the written questions attached to Addendum No. 1, no written clarification of the RFP was requested by Scan-Optics or any other prospective vendor. No written protest to the RFP was filed by Scan-Optics or any other prospective vendor. The evidence failed to prove that the Department's actions in issuing the RFP or it actions between the issuance of the RFP and the filing of proposals by vendors (i.e., the conduct of the pre-proposal conference) were fraudulent, arbitrary, illegal or dishonest. Purpose of the RFP. The RFP included the following "overview" of why the Department issued the RFP: The Department of Revenue is planning the purchase of scanning equipment to enhance its data entry capabilities. The Department currently utilizes the Tartan Data Entry System to capture data from tax returns and related documents in a key to disk environment. . . . Scanning equipment would enable the Department to capture handwritten or typed data through optical character recognition. It is estimated that over 90% of typed data and 70% of handwritten data can be captured through optical character recognition. The initial application of Intangible Tax Returns represented over 68 million keystrokes during the last year. . . . . Joint Exhibit 1 (Tab D), section 1.2, page 1. The Department provided the following more specific indication with regard to what it was seeking through the RFP: It is the intent of the State to procure a total turn-key system comprised of all equipment, software, and services associated with optical scanning/optical character recognition of source data to provide output data for further processing at Florida Department of Revenue via magnetic tape or telecommunications. The system must be current state-of-the-art, allowing for future integration of imaging techniques into the scanner system as a field upgrade without replacing installed equipment. . . . A turn- key proposal is envisioned which will include installation, the design of the initial forms, scanner and edit and reject/re-entry system programming, operations and programmer training on-site, and any other support services essential to the successful operation of the system. It is requested that the successful vendor propose a minimum of 100 hours of software support for future applications to be allocated at the discretion of the Department. Reference Current System for details regarding the two Intangible Tax Form(s) and Documentary Tax Forms which we propose as initial scanning applications. We believe that the Section below appropriately sets forth the hardware and software sub-objectives including a scanner/imaging system, but we would like any potential Offerors to know that our overall objectives are a continuing improvement in all areas of operation at Florida Department of Revenue. In order of importance, the following are our goals: . . . . Joint Exhibit 1 (Tab D), section 3.1, page 9. The RFP went on to list a number of objectives (generally referred to as lower costs, enhance taxpayer service, improve quality, accelerate cycle time and decrease paper handling) and approximately 30 "desired" features the Department wanted vendors to address. Joint Exhibit 1 (Tab D), sections 3.2 through 3.31, pages 10-16. There were three forms attached to the RFP which the RFP indicated the Department intended to process with the system initially purchased pursuant to the RFP. Each form was identified and the potential data to be collected was identified by indicating the data elements currently captured, their size and their class. Although the data elements currently captured included only numeric data for two of the forms and numeric and some alpha data for the third form, the RFP did not specify that all data currently captured would necessarily be captured as a result of the RFP. The RFP also indicated that "[s]ubstantial changes to the layout will occur at design time" indicating that the forms were to be redesigned to accommodate a vendor's proposed method of collecting data from the forms. The RFP did not require that the Department acquire equipment which would read all Department forms which may ultimately be processed with optical scanning equipment or even that the exact three forms attached to the RFP for initial processing be processed as a result of any purchase under the RFP. The intent of the Department reflected in the RFP and as explained during the hearing of this matter was for vendors to provide the Department with details concerning their full capability (equipment and costs) to process Department materials with their optical scanning equipment and allow the Department to select a combination of equipment which would initially allow the processing of the three forms, in whatever format could best serve the Department's needs, and allow the Department to later upgrade and increase its use of optical scanning equipment. The RFP requested that vendors identify each component of their systems, including all recommended features for the initial task. Joint Exhibit 1 (Tab D), section 5.2, page 19. Vendors were also required to provide itemized prices for all components of their proposals: This tab must show the itemized prices for all components to include hardware, software, cables/connectors, shipping, installation, training, maintenance, start-up supplies/ equipment and any other goods/services. Pricing information must include all items that may be needed to provide a configuration of equipment and software to the Department. Any recurring charges must also be shown. Any quantity or price discounts offered in the proposal should be clearly stated. Pricing information must be submitted in the formats provided. It is imperative that adequate pricing information be included in the proposal. The Department cannot purchase any item against the proposal if adequate pricing information is not included in the proposal. Therefore, pricing information should be provided for optional features, equipment, software and services that are not a required part of any particular configuration herein, but may be desired if changes become necessary to any configurations purchased by the Department. . . . . . . . Joint Exhibit 1 (Tab D), section 5.2, page 20. Responses to the RFP. On or about August 6, 1991, Scan-Optics, REI and GTE Vantage Solutions submitted responses to the RFP. All responses to the RFP were determined to be responsive to the RFP and were evaluated and scored. The evidence failed to prove that the Department's determination that the responses to the RFP were responsive was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; General. Section 4.3 of the RFP established the criteria for evaluation of proposals to the RFP. A total of 35 points were available for "costs", 30 points for "functional requirements", 30 points for "future requirements" and 5 points for "tax related experienced". The Department established a four person committee (hereinafter referred to as the "Committee"), to review and evaluate proposals to the RFP. Those individuals were Mr. Evers, George Brown, Larry Neilson and Gerald Johnson. Pat Gonzalez, an employee of the Information Resources Commission, also served as a non-voting member of the Committee. Subsequent to the filing of the proposals to the RFP, the Committee met on several occasions to discuss scoring criteria and to review lists of equipment submitted by each vendor. The members of the Committee reviewed and scored each proposal individually. After individually scoring each proposal, the Committee met and reviewed the individual scores. The individual scores were averaged and tabulated by Ms. Gonzalez. REI received an average score of 30 points for the functional requirements of section 3 of the RFP, an average score of 23 points for section 5 of the RFP and 5 points for section 6 of the RFP. Scan-Optics received average scores of 24.19, 12.5 and 5, respectively, for these three categories. Adding the scores for cost, discussed infra, the final tabulation of scores was as follows: REI 85.16 Scan-Optics 76.69 GTE Vantage 54.72 Based upon the foregoing, the Department decided to award the contract under the RFP to REI. Evaluation of the Proposals to the RFP; Costs. On August 6, 1991, when the proposals to the RFP were first opened, a preliminary bid tabulation sheet was completed. REI's proposed unit price was $1,389,025.00, and Scan-Optics' proposed unit price was $774,868.00. The Committee subsequently reduced the unit price of REI's proposal by $440,658.00, from $1,389,025.00 to $948,367.00. This reduction was made based upon a decision of the Committee, after a review of the REI proposal, to select a configuration of REI's equipment which the Committee believed comported with the Department's intent as evidenced by the RFP and would perform the tasks envisioned in the RFP. This decision was reasonable and consistent with the RFP in light of the following: The RFP informed vendors that the Department reserved the right to select any configuration of equipment submitted by vendors. Paragraph 7, General Conditions of the RFP, provided, in pertinent part: As the best interest of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof; to reject any and all proposals or waive any minor irregularity or technicality in proposals received. . . . At Tab 11, Section 5 of the RFP, it was provided, in pertinent part: Offerors are required to include all equipment and software availability for their series or family of equipment proposed. The Department shall use these to determine the final ordered configuration from the selected proposal and from time to time, for additional equipment or software. This will also allow the Department the option of selecting equipment from State contract or under this RFP/Contract. This will also allow the Department to implement functions either undefined or unforeseen. The Department reserves the right to acquire any and all of the equipment, software and services necessary to meet the requirements of this proposal. Vendors were also required by Tab 11, Section 5 of the RFP to submit itemized prices for all components of a proposal: "Pricing information must include all items that may be needed to provide a configuration of equipment and software to the Department." REI's proposal included its entire array of equipment with itemized prices. This information allowed the Committee to equalize the vendors' proposals and, thus, allow a fair comparison of the two vendors. It also allowed the Committee to perform its task of deciding what configuration of equipment would best meet the Department's needs. Scan-Optics' proposal did not include separate itemized prices. Therefore, the Department was not able to decide the most advantageous configuration of Scan-Optics' equipment. Without the reduction in costs, REI's proposal was more extensive and more expensive than Scan-Optics' proposal. The Committee discussed the matter and questioned the Department's purchasing director as to whether REI's proposal could be reduced pursuant to the RFP to make it more compatible with the RFP. After being assured that such a reduction was permissible under the RFP, the Committee removed some of the REI proposed vocabulary kits and the costs of those kits. The Committee was unable to make a similar reduction to Scan- Optics' proposal because Scan-Optics had not itemized the cost of its equipment. With the reduction in REI's unit price made by the Committee, REI received a total of 27.16 points for the cost component during the evaluation process. The total score awarded to REI was 85.16. If the Committee had not given REI the reduction in unit price, REI would have only received 7.26 points for cost and its total score would have been 65.26. Scan-Optics received 76.69 total points (including 35 points for "cost"), which is higher than the points REI would have received but for the Committee's reduction of REI's unit price. REI was contacted by the Department to verify that the Department's understanding of the pricing information contained in REI's response to the RFP was correct. The evidence failed to prove that this contact allowed REI to provide any additional information to the Department or was otherwise improper. The Department did not contact Scan-Optics because Scan-Optics had not provided any information upon which the Department could have evaluated Scan-Optics' proposal in a similar manner as it had REI's. Therefore, there was no similar conclusion reached concerning Scan-Optics to be verified. The evidence failed to prove that the Department's evaluation of the costs of the vendors or the award of cost points to REI or Scan-Optics was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; An Oklahoma Tax Commission Evaluation Form. Prior to the evaluation of the proposals to the RFP Mr. Evers requested that an evaluation form used by the Oklahoma Tax Commission be provided to him. Mr. Evers made this request because he wanted to use the evaluation format he knew the Oklahoma Tax Commission had used. The evaluation form provided to Mr. Evers included the actual results of the Oklahoma Tax Commission's evaluation of proposals it had received. REI was awarded the Oklahoma Tax Commission contract. Mr. Evers provided a copy of the Oklahoma Tax Commission's evaluation to one of the members of the Committee and told him to give a copy to one other member. The evidence failed to prove if the fourth member and Ms. Gonzalez were provided a copy. The evaluation general point scale on the Oklahoma Tax Commission evaluation form was used by the Committee: Item not bid or does not meet specifications. Partially meets specifications. Meets specifications. Exceeds specifications. Substantially exceeds specifications. ? Need additional information from vendor. Although Mr. Evers could have avoided all appearance of impropriety by distributing a blank Oklahoma Tax Commission evaluation form, the weight of the evidence failed to prove that Mr. Evers' actions in distributing the Oklahoma Tax Commission evaluation form was fraudulent, arbitrary, illegal or dishonest. The evidence failed to prove that the Committee was in fact influenced by the Oklahoma Tax Commission evaluation form in any substantial way. I. Evaluation of the Proposals to the RFP; REI's TARTAN XP80. REI's proposal included equipment named the TARTAN XP80. This equipment is the basic optical scanning system of REI. The XP80 system proposed by REI is capable of including from 40 to 720 templates. The Department, after evaluation of the proposals, decided that the XP80 with only 40 templates would be sufficient to meet the Department's initial goal as set out in the RFP. The Department concluded that it was not necessary to acquire the XP80 with its 720 template capacity. The 40 template system is the system which the Committee evaluated with regard to the cost of the REI proposal. Section 3.17 of the RFP included the following desired characteristic: Optical Character Recognition - The document scanning system must be capable of employing both feature matching and feature analysis recognition techniques. The system must be capable of processing all standard OCR fonts in single font, multiple font, or multi-font mode under program control. The Offeror must provide a list of all fonts recognized by their system and any restrictions that apply. Vendor to define number of fonts recognized by his system, i.e., single font, multiple font, omnifont, and multifont. The specifications of Section 3.17 of the RFP were not "mandatory" requirements of the system ultimately to be acquired by the Department. The Department requested information concerning these capabilities, but did not specify in the RFP that the system it would ultimately purchase for its initial project would contain the specifications of Section 3.17 of the RFP. In light of Scan-Optics own challenge to the provisions of section 3 of the RFP as "mandatory" and the Department's decision to eliminate the reference to the provisions of section 3 as "mandatory", it is clear that there was no requirement that the ultimate system acquired pursuant to the RFP had to be capable of processing all standard OCR fonts in single font, multiple font, or multifont mode under program control. The evidence failed to prove that REI did not provide information concerning its capabilities to meet the specifications set out in Section 3.17 of the RFP or that the information provided was inaccurate. Two of the forms to be initially processed (forms 601I and 601C) only required capability to read numeric characters. The third form (form 219) could, in a limited number of instances, contain numeric and alpha characters. In evaluating the proposals, the Department decided that, to the extent that alpha characters may be contained on form 219's, the alpha characters could be ignored without creating significant problems in processing. The Department's conclusion that the XP80 with only 40 templates can handle the initial task contemplated by the RFP was based upon the fact that the forms may be redesigned and the conclusion that the number of instances when alpha characters appear will be insignificant enough to ignore. There was evidence presented that the XP80 with only 40 templates cannot efficiently and successfully process the three forms to be initially processed. There was also evidence that the XP80 with only 40 templates will not be successful even if the forms are redesigned. The weight of the evidence failed, however, to substantiate this claim. Whether the XP80 with only 40 templates can successfully process the three forms depends upon the environment in which the forms are completed. It is possible that if the exact environment is known so that the number and type of fonts that may be used is known, only 40 templates can process the forms coming from that environment. The Department has not determined what exactly the environment in which the forms will be completed is. The Department did, however, consider the probable environment in reaching its decision. More importantly Scan-Optics did not prove what that environment is. Nor did Scan- Optics prove that the environment is, or will be, one which will prevent the XP80 with only 40 templates from being successfully used as contemplated by the RFP. The evidence proved that an XP80 with a minimum of 200 templates up to a maximum of 350 templates could be used to successfully carry out the task contemplated in the RFP even in a random environment (one in which any number of fonts might be used to complete a form). If up to at least 280 templates were purchased the XP80 could handle the processing of the forms and, adjusting the score of REI for the additional costs and additional performance characteristics of an XP80 with up to 280 templates, REI would still be the highest scorer. Exactly where the cut-off between the number of additional templates which it may be necessary to acquire according to evidence presented by Scan-Optics (between 200 and 350) and the resulting reduction in REI's score to below Scan- Optic's score would occur was not proved. The evidence failed to prove that the actions of the Department with regard to its decision to acquire an XP80 with as low as 40 templates was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; Table C. Table C of the RFP required that vendors list any optional features, which would enhance optical scanning operations: "LIST ANY OPTIONAL FEATURES WHICH ENHANCE PERFORMANCE OF THE SCANNING EQUIPMENT OPERATION". Joint Exhibit 1 (Tab D), page 30. REI did not provide a completed Table C with its proposal. REI's proposal included additional vocabulary kits containing from 40 to 720 templates and the cost of those kits in Table B of its proposal. Table B was to be used to provide the following: "LIST EACH AND EVERY COMPONENT AND FEATURES REQUIRED FOR INSTALLATION AND FULL OPERATIONAL STATUS." REI's proposal was consistent with these instructions. The fact that the vocabulary kits involved in the award of points for costs were included on Table B and were not included on Table C does not mean that the Department could not reject vocabulary kits as unnecessary for its initial purchase based upon other information contained in REI's proposal. The inclusion of the kits on Table B merely indicates that, to acquire REI's total capability with an XP80, up to 720 templates are required for "FULL OPERATIONAL STATUS." That does not mean that the Department intended or was required by the RFP to actually acquire "FULL OPERATIONAL STATUS." Section 3.9 of the RFP provided the following desired feature: Document Imaging - The proposed document scanning system must be capable of being field upgraded with image cameras for both front and back imaging of documents. Imaging must occur on both sides of the document in a single pass. The proposed system must be capable of taking partial images of the document within the confines of windows, zones, or strips. When and if imaging is added to the proposed system, it must not slow any other operations or functions of the system below that of normal throughput speed of the identical system without the added imaging capability. The following question, submitted in writing to the Department, and the following written answer from the Department, were included in Addendum No. 1: 48. Is the cost to retrofit to imaging included in evaluation criteria? Answer: Future costs will be considered. REI responded to section 3.9 as follows: Exceeds Requirement: The proposed TARTAN XP80 can be upgraded to imaging exactly as defined in Section 3.9. In addition, image output can be passed to an extremely wide range of image processing systems including those from IBM, NCR, Unisys, FileNet, Plexus and many others. Joint Exhibit 3 (Tab H), page 5. REI failed to list the equipment necessary to meet the desired feature of section 3.9, or the price of such equipment, on Table C of its proposal. This information, however, was included by REI on Table B according to the testimony of Mr. Evers. To the extent that Table C was not provided, REI's failure to provide the information to be contained thereon was a minor irregularity. The RFP did not require that the Department evaluate the proposals based upon the cost of future upgrades. The RFP only required that the Department determine the ability of vendors to upgrade and REI's proposal gave the Department sufficient information to accomplish this requirement. The evidence failed to prove that the Department's failure to reject REI's proposal because of its failure to provide Table C or that the Department's grading of REI's proposal in light of the failure to include a Table C with its proposal was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; The One- Year Warranty. The RFP required that a one-year warranty be included with each proposal. REI's proposal only included a 90-day warranty. REI's proposal, however, included the cost of one-year's maintenance costs of $61,587.00. The evidence failed to prove that the Department's acceptance of REI's warranty and maintenance costs was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; Grading of Sections 3.2 through 3.31. Addendum No. 1 to the RFP modified, among other things, three of the desired features of section 3 of the RFP. In particular, sections 3.5, 3.11 and 3.20 of the RFP were modified. The scores awarded to Scan-Optics by some of the members of the evaluation committee for its response to sections 3.5, 3.11 and 3.20 were lower than the scores awarded to REI. The evidence failed to prove the actual reason why the scores awarded to Scan-Optics pursuant to sections 3.5, 3.11 and 3.20 of the RFP were lower than the scores awarded to REI or that the lower scores were based upon the requirements of those sections without regard to the modifications of Addendum No. 1. The impact on the scores of Scan-Optics, even if attributable to error by the Department, would be minimal. The evidence failed to prove that even if the Department had graded Scan-Optics' proposal without taking into account the modifications of Addendum No. 1 to sections 3.5, 3.11 and 3.20, that the Department acted in a fraudulent, arbitrary, illegal or dishonest manner. Conclusion. Based upon the foregoing, it is concluded that the evidence failed to prove that the Department's actions from the time that it developed the RFP to the announcement of its proposed award of the contract under the RFP to REI was fraudulent, arbitrary, illegal or dishonest. Any unfairness to Scan-Optics was a result of the Department's broad discretion pursuant to the RFP to decide what to acquire as a result of the RFP and the apparent confusion of Scan Optics, and probably REI, caused by the RFP. The RFP was not, however, challenged.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the Formal Written Protest and Petition for Formal Administrative Hearing filed by Scan-Optics, Inc. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX Case Number 91-6545BID Scan-Optics and REI have submitted proposed findings of fact. The Department has indicated its intent to adopt the proposed findings of fact of REI. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Scan-Optics' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3 and 5. 2 4-5. 3 See 31-37. See 32. See 33. 6-7 Hereby accepted and see 33 and 64-69. Not supported by the weight of the evidence. See 31-37 and 64-69. 11 and 13. The third, fourth and seventh sentences are not relevant. The fifth and sixth sentences are misleading and not totally accurate--there was only one RFP and one ITB and they were included in Mr. Evers' file on REI. See 19-20. The last sentence is not relevant. 11-12 20 and 26. 13 26. 14 22-23 and 26. 15 Hereby accepted. 16 See 20. But see 22, 25 and 27-30. 17-19 See 22, 25 and 27-30. 48, 58 and hereby accepted. Hereby accepted. But see 31-37. 58 and hereby accepted. 32, 70-71 and hereby accepted, except the fourth sentence, which is not supported by the weight of the evidence, and the last sentence, which is not relevant to this proceeding. 24-28 Hereby accepted. Not relevant. Hereby accepted. 31 32. 32 41. 33 44. 34 48 and 50-51. 35 See 47-48 and 51 and hereby accepted. 36 50-51. 48-49 and 51 and hereby accepted, except the fifth and last sentences, which are not supported by the weight of the evidence. See 54-57. The third sentence mischaracterizes Mr. Evers' testimony and is, therefore, not supported by the weight of the evidence. Not supported by the weight of the evidence or not relevant. 40 56. 41-42 Not supported by the weight of the evidence. 43 See 60. 44 See 60-63. 45 Not relevant. 46-47 Not relevant. See 60-63 48 49-51 Not relevant. See 66-69. Not supported by the weight of the evidence. See 66-69. 52 See 45. But see 83-86. 53 Hereby accepted. 54 See 83 and hereby accepted. 55 Hereby accepted. 56 See 84-86. 57 Hereby accepted. 58 See 83 and hereby accepted. 59 See 84-86. 60-62 Hereby accepted. 63 See 84-86. 64 32. 65 74. 66 75. 67 76. 68 See 70-71 and hereby accepted. 69 Not supported by the weight of the evidence. See 77. 70 First sentence: hereby accepted. Second sentence: not supported by the weight of the evidence. Third sentence: hereby accepted as to the scores given REI; the rest of the third sentence is not supported by the weight of the evidence. 71 Not relevant. 72 See 80-81. The computation of maintenance cost ignores the apparent discount which is given, depending on the length of the maintenance period purchased. For example, if a year's maintenance is purchased, the costs is less than the monthly rate times. 73 Not relevant. See 60-63. 74 58. 75 Not relevant. See 31-37 and 60-63. 76 Not supported by the weight of the evidence. 77-79 and 81 Although these proposed findings of fact include correct quotations, other evidence was more persuasive. 80 Hereby accepted. 82 Not supported by the weight of the evidence. See 68. 83 Not supported by the weight of the evidence. See 65 and 68. 84 See 67. 85 67. 86 See 67. 87-88 Not supported by the weight of the evidence. See 68. Not relevant. See 68. 92 52. 93 Not supported by the weight of the evidence. See 31-37. REI's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 6. 2 7. 3 8. 4 9. 5 10. 6 11 and 13. 7 14. 8 15. 9 There was no proposed finding of fact 9. 10 18. 11 19-20. 12 20 and 26. 13 22 and hereby accepted. 14 22. 15 22 and hereby accepted. 16 29. 17 21. 18 26. 19-20 28. 21 24-25. 22 38. 23 41. 24 Hereby accepted. 25 42. 26-30 48. 31-32 48-49. 33 43. 34 40. 35 50-51. 36 44. 37 43. 38 45. 39 46. 40 39. 41 Hereby accepted. 42 59. 43 Hereby accepted. 44 See 61-63. 45 Hereby accepted. 46 See 37, 70 and 78. 47 77. Not relevant. Hereby accepted. 50-51 64. 52 59 and 65. 53 33 and 65. The last sentence is not supported by the weight of the evidence--there was some evidence presented. 54 67. 55-59 See 68. 60 See 83-86. 61 87. 62 Hereby accepted. 63 81. COPIES FURNISHED: James W. Linn, Esquire Rosa H. Carson, Esquire 1711-D Mahan Drive Tallahassee, Florida 32308 William E. Williams, Esquire Rex D. Ware, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Gene T. Sellers Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether the decision of Respondent, Seminole County School Board, not to include Petitioner, Cady Studios, LLC, in its award of a yearbook and photography services contract was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Seminole County, Florida. See § 1001.30, Fla. Stat. The School Board oversees 37 elementary schools, 12 middle schools, nine high schools, and seven special centers. The Seminole County School District includes over 67,000 students. The School Board is an authorized governmental entity allowed to contract for commodities or services using the competitive solicitation process set forth in section 287.057, Florida Statutes. See §§ 1010.04 and 1001.41(4), Fla. Stat. On July 18, 2017, the School Board published [Request for Proposal] #17180001P-LL, Yearbook and Photography Services (the “RFP”). Through the RFP, the School Board solicited qualified vendors to provide Photography Services to Seminole County Public Schools. The initial contract for the Photography Services runs for three years, with a possible extension of another two years. Prior to this RFP, the School Board had never used a request for proposal to solicit the Photography Services. Thirteen photography and yearbook vendors, including Cady Studios, responded to the RFP. Ultimately, as further explained below, the School Board determined to offer the top seven vendors a contract to provide the Photography Services. Cady Studios was ranked eighth. Consequently, Cady Studios was not selected under the RFP. Cady Studios is a family-owned portrait company based in Florida and has provided school portrait services since 1998. Cady Studios has partnered with over 50 schools in central Florida, and is an approved vendor in 35 Florida school districts. The School Board published the RFP, as well as an Addendum, on VendorLink and Demand Star websites. The School Board used these two on-line platforms to disseminate information regarding the solicitation to interested vendors. The School Board provided links to VendorLink and Demand Star on the district’s website. After the School Board posted the RFP on July 18, 2017, the School Board did not receive any protests to the terms, conditions, or specifications contained in the RFP.5/ Pertinent to this matter, Cady Studios never protested the RFP’s terms, conditions, or specifications, or the School Board’s decision to competitively solicit bids for the Photography Services under section 287.057. As stated in the RFP, the School Board conducted a pre- proposal conference on July 27, 2017. During this meeting, the School Board offered interested vendors the opportunity to ask questions about the RFP, as well as educate themselves about the process. Cady Studios did not attend the pre-proposal conference. On August 2, 2017, the School Board posted an Addendum to the RFP which requested specific pricing information for the Photography Services to be offered to high schools, middle schools, and/or elementary schools in Seminole County. Proposals for the Photography Services were due on August 15, 2017. Thirteen school photography and yearbook vendors, including Cady Studios, presented proposals in response to the RFP. RFP, Section V, directed each vendor to deliver “One (1) original, One (1) copy, and ten (10) electronic [USB] thumb drive version[s]” of its proposal to the School Board. To score the proposals, as set forth in RFP, Section IV, 1.A, the School Board formed an Evaluation Committee. The voting members consisted of an executive director from an elementary school, a middle school, and a high school (or their designees), as well as a local business advisory member. A non-voting School Board member was also included on the Evaluation Committee. The individuals selected to serve as the voting members of the Evaluation Committee included Dr. Trent Daniel (Principal, Lake Brantley High School); Byron Durias (Principal, Sanford Middle School); Tina Langdon (Principal, Sabal Point Elementary School); and Donald Miller (Business Advisory Member). Karen Almond served as the non-voting School Board member. After the School Board assembled the Evaluation Committee, the four voting members received training on the RFP’s scoring procedure. The training was conducted by Luangel Lowder, the School Board’s Purchasing Agent, on August 17, 2017. Ms. Lowder drafted and prepared the RFP. She also facilitated the RFP process. Ms. Lowder distributed training notes to each evaluator, which included guidance on how to score the proposals. In her written comments, Ms. Lowder wrote, “The Vendor Submittals are on Individual Jump Drives. I do have a hard copy if needed.” Ms. Lowder also provided “Adjectival Descriptor Rating Guidelines,” which the voting members were to use to score the proposals. Regarding a score of “0,” the guidelines explained: Unsatisfactory (0): Not responsive to question. “Unsatisfactory” is defined as a response not meeting the requirements without major revisions and proposes an unacceptable risk. “Unsatisfactory” demonstrates a misunderstanding of the requirements; the approach fails to meet performance or capability standard and contains major omissions and inadequate detail to assure the evaluator that the respondent has an understanding of the requirement. RFP, Sections IV and V, also listed the specific evaluation criteria, as well as the adjectival scoring system, the Evaluation Committee was to use to determine each vendor’s score. RFP, Section V, directed that “[e]ach response shall be organized and presented in the following sequence and will include the following at a minimum”: Tab 1-Respondent’s Profile and Submittal Letter (Non- Scored) Tab 2-Experience of Personnel (Weighted Value 25) Tab 3-Technical Approach Methodology (Weighted Value 30) Tab 4-References (Weighted Value 10) Tab 5-Fee Schedule (Weighted Value 35) Tab 6-Confidential Materials, Financial Statement and Litigation (Non-Scored) Tab 7-Exceptions to Draft Contract (Non-Scored) Tab 8-Addenda (Non-Scored) Tab 9-Required Documents (Non-Scored) The proposals were to be scored on a scale of 0 to 4 with a score of 0 as the least favorable, and a score of 4 as the most favorable in all sections. RFP, Section IV, 1.C, noted that a vendor’s response would receive a score of 0 if it was “Unsatisfactory: Not responsive to the question.” The RFP did not provide objective measures for the evaluators to score the proposals. Instead, the School Board relied on the experience and judgment of each evaluator as to what score to award in each category. The RFP notified vendors that, after the proposals were evaluated, the Evaluation Committee might conduct interviews or presentations from a shortlist of vendors. Per the terms of the RFP, the School Board required each winning vendor to enter into a Master Services Agreement. The Master Services Agreement was to ensure that each vendor for the Photography Services complied with, and operated under, the same terms and conditions. These standard terms and conditions included, but were not limited to, requirements for background checks, licenses, certificates of insurance, as well as the use of a common commission’s structure. Thereafter, the School Board intended for each district school to select a company from the list of approved vendors from whom they desired to obtain the Photography Services. After the 13 vendors presented their proposals on August 15, 2017, the School Board distributed a thumb [USB] drive from each vendor to each Evaluation Committee member. At that point, each committee member separately scored each proposal using the four weighted criteria listed in RFP, Section V: Experience of Personnel (25 points), Technical Approach Methodology (30 points), References (10 points), and Fee Schedule (35 points). On September 21, 2017, the Evaluation Committee convened a “short-list meeting” to discuss the scores each committee member awarded to each vendor. When Cady Studios’ proposal came up for review, two committee members, Dr. Trent Daniel and Byron Durias, announced that the USB drives they had been given for Cady Studios were blank. Dr. Daniel had tried her USB drive on two computers with similar results: the USB drive did not contain any files. Ms. Lowder then asked both members if they wished to review another USB drive or a paper copy of Cady Studios’ presentation so that they could score its proposal. Dr. Daniel declined. On her score sheet for Cady Studios, Dr. Daniel wrote before the short-list meeting, “could not read USB - empty.” During the discussion between the other evaluators, Dr. Daniel added: “notes, experience limited, reference from school, senior package high, presentation of bid, partnership w/ Herff Jones.” At the end of the discourse, because she had no proposal to score, Dr. Daniel disclosed to the Evaluation Committee that she awarded Cady Studios a score of “0” in every category. Mr. Durias, however, was willing to evaluate Cady Studios during the short-list meeting. Therefore, Ms. Lowder provided him another USB drive that did contain Cady Studios’ proposal. After his review, Mr. Durias awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 1 – References, and 2 – Fee Schedule. Each USB drive that Tina Langdon and Donald Miller received for Cady Studios contained its proposal, which they scored. Ms. Langdon awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 3 – Fee Schedule. Mr. Miller awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 2 – Fee Schedule. At the final hearing, Dr. Daniel explained that she passed on the opportunity to rescore Cady Studios’ proposal because, in her mind, a blank response (or USB drive) equated to a nonresponsive proposal. In other words, she scored what she had been given. Cady Studios’ proposal was “unsatisfactory” because it contained no response to the questions. Dr. Daniel further commented that Cady Studios’ failure to ensure that its proposal was properly copied onto all of its USB drives was irresponsible and unprofessional. This carelessness gave Dr. Daniel apprehension about the quality of service Cady Studios would provide if it could not follow the RFP’s explicit directions. Following the discussion and scoring of the vendors’ proposals, the Evaluation Committee members ranked all 13 vendors by overall total weighted scores. The Evaluation Committee’s final list of vendors and their scores read as follows: Grad Images: 1335 Life Touch: 1290 Leonard’s: 1272.5 Dean Stewart: 1140 Strawbridge: 1095 Josten’s: 1030 Walsworth: 1010 Cady Studios: 720 Barksdale: 715 Nation Wide: 710 Monden Studios: 705 Herff Jones: 670 Ritoba: 585 As shown above, Cady Studios received the eighth highest score. The Evaluation Committee then discussed which vendors it should invite back for informal interviews. After a brief deliberation, the Evaluation Committee reached a consensus that it should extend an interview to the top seven vendors on the scoring list. Dr. Daniel and Ms. Lowder explained that this division was chosen because of the “natural break” in the scores between the seventh ranked vendor (Walsworth) and the eighth ranked vendor (Cady Studios). Ms. Lowder relayed that the relatively large scoring differential between Walsworth (1010) and Cady Studios (720) (nearly 300 points) appeared to separate the top vendors from the others. Therefore, to narrow down the list of vendors to those most qualified to provide the Photography Services, the Evaluation Committee chose this gap as the dividing line. Dr. Daniel relayed that she had previously used this “natural break” scoring technique in cheerleading and dance competitions. Ms. Lowder testified that the RFP did not establish an exact number of vendors the School Board should select to provide the Photography Services. Neither did the RFP state how the vendors were to be condensed, if at all. The Evaluation Committee, however, felt that the number of approved vendors should be limited. A truncated list of vendors would provide a more manageable group for the School Board to oversee to ensure that each vendor offered a similar pricing structure and consistent services. This action would also make it easier for individual schools to select the vendor with which they desired to work. As a result of the Evaluation Committee’s “natural break” methodology, Cady Studios was not grouped with the winning vendors for the Photography Services. As a non-selected vendor, Cady Studios was not authorized to offer Photography Services to the district schools for the length of the RFP contract period (3 to 5 years). Cheryl Olsen serves as the School Board’s Director of Purchasing and Distribution. In this role, she supervised the procurement activities. After the Evaluation Committee’s short- list meeting, Ms. Olsen prepared a “Short List Letter” for the top seven vendors. The letter notified the vendors of their ranking on the short list and invited them back for informal interviews with the Evaluation Committee. On September 22, 2017, Ms. Lowder forwarded Ms. Olsen’s letter to the seven short-listed vendors. The interviews were scheduled for September 28, 2017. On September 28, 2017, the Evaluation Committee met with each of the seven short-listed vendors. Following the interviews, the Evaluation Committee decided that the School Board should offer the Photography Services to all seven short- listed vendors. That afternoon, Ms. Olsen drafted a Notice of Intended Decision announcing the intent to award the RFP to the top seven vendors. Ms. Olsen posted the Notice of Intended Decision on-line through both VendorLink and Demand Star. The Notice of Intended Decision stated: The Purchasing and Distribution Services Department hereby notifies all firms of an intended decision regarding the award of the [RFP] as outlined below or attached. The firms on the attached list will be recommended to the School Board on October 17, 2017 with final contracts to be presented at a future meeting. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes.[6/] Attached to the Notice of Intended Decision was the list of the seven vendors who the Evaluation Committee intended to recommend to the School Board for award of the RFP. Cady Studios was not included on the list. On October 10, 2017, the School Board formally approved an award of the Photography Services to the seven vendors identified in the Notice of Intended Decision. On November 7, 2017, the School Board entered into a Master Services Agreement with each of the seven winning vendors for the Photography Services. The initial term of the Master Services Agreements runs from November 8, 2017, through November 7, 2020. Jimmy Smith works as the Market Vice President for Cady Studios. In his role, Mr. Smith oversees all of Cady Studios’ photography services in Florida. Mr. Smith prepared Cady Studios’ proposal for the RFP. Mr. Smith explained that he is familiar with the competitive solicitation process. He has previously submitted proposals on behalf of Cady Studios for school photography services in Pinellas, Hillsborough, and Brevard Counties. In a typical school portrait arrangement, the parents/students directly pay the studio for the photography services. The studio then pays a commission back to the school. Prior to the RFP, Cady Studios was an approved vendor for the School Board. Cady Studios had worked with approximately four schools in the Seminole County School District. Mr. Smith was also familiar with VendorLink and Demand Star, the on-line platforms the School Board used to publish information regarding the RFP. Mr. Smith learned about the RFP after the School Board had already posted notice of the solicitation on July 18, 2017. However, by August 9, 2017, Mr. Smith had registered Cady Studios with VendorLink, and began receiving the notifications regarding the RFP. On Sunday, September 24, 2017, Mr. Smith found out about the Evaluation Committee’s short-list from another vendor. Mr. Smith then accessed the VendorLink website and spotted the Evaluation Committee’s invitation to the seven top vendors to return for informal interviews. When he discovered that Cady Studios was not included on the list, he concluded that Cady Studios would not be awarded the Photography Services contract. Mr. Smith promptly wrote an e-mail to Ms. Lowder. He asked her for any information as to why Cady Studios did not make the Evaluation Committee’s shortlist. Ms. Lowder received Mr. Smith’s e-mail the following morning on Monday, September 25, 2017. She replied to Mr. Smith both through an e-mail, as well as a phone call. During the phone call, Ms. Lowder offered to meet with Mr. Smith for a “debriefing” to review the Evaluation Committee’s decision. Ms. Lowder did not offer any information as to why Cady Studios was not included with the short-listed vendors. Ms. Lowder and Mr. Smith scheduled the debriefing meeting for Thursday, October 5, 2017. In the meantime, Mr. Smith received the School Board’s Notice of Intended Decision on September 28, 2017. He did not contact Ms. Lowder to reschedule the debriefing meeting. On October 5, 2017, Mr. Smith met with Ms. Lowder and Ms. Olson for the debriefing meeting. They reviewed the results of the Evaluation Committee’s short-list meeting, as well as each evaluator’s scores. During this meeting, Mr. Smith first discovered that one evaluator (Dr. Daniel) scored Cady Studios’ proposal with a “0” in every category. Mr. Smith further learned that Cady Studios received this score because the USB drive Dr. Daniel had been given was blank. At the final hearing, Mr. Smith adamantly declared that all 10 USB drives that he produced for the School Board contained Cady Studios’ proposal. He had no idea why two of the drives were blank when opened by Dr. Daniel and Mr. Durias. Mr. Smith also pointed out (correctly) that the RFP contained no provisions regarding what an evaluator was supposed to do with a blank USB drive. The RFP certainly did not direct the evaluator to score the proposal with all zeros. In his communications with Ms. Lowder, Mr. Smith never indicated that Cady Studios intended to protest the School Board’s ranking of vendors, or challenge the School Board’s decision in any other manner. However, on October 12, 2017, legal counsel for Cady Studios, Jeff Childers (Cady Studios’ counsel in this administrative matter), wrote to Ms. Olsen questioning the results of the RFP. Mr. Childers referenced the fact that one evaluator failed “to assign any points in any category to Cady.” Mr. Childers concluded by requesting that the School Board consider resolving this issue informally by allowing Cady Studios “to join the other seven authorized proposers” to provide Photography Services to district schools. On October 16, 2017, Ms. Olsen responded to Mr. Childers in a letter saying: The Notice of Intent to Award this solicitation was posted on September 28, 2017 at 2:24 p.m. In accordance with School Board Policy 7.71, Resolution of Bid Protests, “Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation.” Ms. Olsen then noted that, as of the date of her letter, Cady Studios had not filed a written notice of protest with the Office of the Superintendent or Clerk of the School Board. At the final hearing, Ms. Olsen (as well as Ms. Lowder) explained that, because the School Board posted its Notice of Intended Decision on Thursday, September 28, 2017, the 72-hour deadline to file a protest fell on Tuesday, October 3, 2017. (Saturday, September 30, 2017, and Sunday, October 1, 2017, are excluded in the computation of the 72-hour time period. See § 120.57(3)(b), Fla. Stat.) The fact that Mr. Smith’s debriefing meeting occurred two days after the 72-hour period had elapsed did not change the protest calculation. As described above, the School Board’s Notice of Intended Decision specifically stated, in pertinent part: Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes. Similarly, RFP, General Purchasing Terms and Condition, Paragraph 10, entitled, RFP TABULATIONS, RECOMMENDATIONS, AND PROTEST, addressed the possibility of a bid protest and stated: Failure to file a protest within the time prescribed in Section 120.57(3) Florida Statutes will constitute a waiver of proceedings under Chapter 120, Florida Statutes and School Board Rules.[7/] Paragraph 10 also referenced School Board Policy 7.71, Resolution of RFP Protest, and included a link to the School Board’s policy webpage where the Policy 7.71 could be accessed. Policy 7.71, Section V, states: Notice of Protest - Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation. In the event notice of intent to award a bid is issued by certified mail or express delivery service return receipt requested, the notice of protest must be filed on or before 4:30 p.m. on the third day following the date of receipt of the notice. In computing the deadline for filing, Saturdays, Sundays, and legal holidays observed by the School Board shall be excluded. Despite Ms. Olsen’s letter, as well as the language regarding protests in the RFP and the Notice of Intended Decision, Cady Studios formally filed a Notice of Protest with the School Board on November 9, 2017. At the final hearing, Mr. Smith acknowledged that 72 hours following the Notice of Intended Decision (not including Saturday and Sunday) fell on October 3, 2017. Therefore, to explain the delay in submitting Cady Studios’ Notice of Protest, Mr. Smith testified that he did not become aware of the material deficiencies in the Evaluation Committee’s review of Cady Studios’ proposal until he met with Ms. Lowder on October 5, 2017. Mr. Smith further admitted that he was not fully aware that Cady Studios only had 72 hours in which to protest the Notice of Intended Decision. Instead, he relied on Ms. Lowder to explain the RFP process, as well as the basis for the Evaluation Committee’s selection of the winning vendors. Consequently, Mr. Smith asserted that Cady Studios “was misled or lulled into inaction by” the School Board’s (Ms. Lowder’s) action of not scheduling a debriefing meeting until two days after the 72-hour protest window had closed. Mr. Smith maintained that if he had been informed of the deadline, Cady Studios would have filed immediately. Mr. Smith conceded that he was familiar with the protest language contained in the RFP’s General Purchasing Terms and Conditions, and was generally aware that the RFP referred to section 120.57(3). Mr. Smith further disclosed that he had read RFP, Paragraph 10, which identified Policy 7.71. However, he did not click the link to actually read the policy. Mr. Smith estimated that, by not making the School Board’s list of approved vendors for the Photography Services, it will lose approximately $2,000,000 worth of business and opportunity costs every year over the life of the contract. At the final hearing, Ms. Lowder responded to Mr. Smith’s testimony by pointing out that, even if Dr. Daniel had awarded Cady Studios with a “1” in each category, Cady Studios’ score would only have increased to 820. As the next lowest score to Cady Studios was 1010, Cady Studios’ adjusted score would still have fallen significantly below the top seven vendors. Continuing to conjecture, Ms. Lowder commented that if Dr. Daniel had given Cady Studios scores similar to the lowest score awarded by the other committee members, Cady Studios’ score would have equaled 935. This score is still below the “natural break” threshold of 1010. On cross examination, however, Ms. Lowder agreed that if Dr. Daniel awarded Cady Studios scores similar to the highest score awarded by the other committee members, Cady Studios would have received a score of 990--much closer to, but still below, the “natural break.” Ms. Lowder and Ms. Olsen also remarked that November 9, 2017, the date Cady Studios eventually filed its Notice of Protest, was 27 business days after the deadline to file a bid protest (and 25 business days after Mr. Smith learned the Evaluation Committee’s scores at the debriefing meeting). Cady Studios’ Notice of Protest was also submitted after the School Board had entered into a Master Service Agreement with each of the seven winning vendors. As discussed in detail below, the evidence presented at the final hearing establishes that Cady Studios failed to timely file its notice of protest within 72 hours after the School Board posted its Notice of Intended Decision. Further, Cady Studios did not prove that it may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Cady Studios’ challenge of the School Board’s intended award of the Photography Services must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board enter a final order dismissing Cady Studios’ protest as untimely filed. DONE AND ENTERED this 23rd day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 January, 2019.
The Issue The issue is whether Respondent is an "employer" as defined by Sections 760.02(7), Florida Statutes (2000). (All references to statutes are to Florida Statutes (2000) unless otherwise stated.)
Findings Of Fact Section 760.02(7) defines an "employer" as any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year. The current year, in this case, is the calendar year 2000, and the preceding year is the calendar year for 1999. Petitioner presented no evidence of the number of employees employed by Respondent for the current and preceding years at issue in this case. Petitioner submitted several documents and called two witnesses, including herself. None of the evidence which was submitted by the Petitioner identified the number or names of employees employed by Respondent during the calendar weeks at issue. Petitioner argued during the hearing that several companies are related entities either as sibling companies with a common parent or as members of an affiliated group. However, Petitioner failed to submit any evidence of their relationship by stock ownership or common operating control that may have demonstrated their status as related entities. Moreover, Petitioner failed to show the number and identity of the employees of those entities was such that the alleged related group of entities satisfied the statutory definition of an employer. Petitioner called one witness beside herself (Dawson). Dawson was a subcontractor for Respondent and not an employee. Assuming arguendo that Dawson was Respondent's "employee" for the year 2000, it does not affect the outcome of this case. Respondent's records and testimonial evidence show that Respondent would only have had 15 or more employees for seven weeks during the 2000 calendar year. Those weeks are the weeks of September 4, 11, 18, 25, 2000; and October 2, 9, and 16, 2000. Even with the hypothetical addition of Dawson as an employee, Respondent would still be 13 weeks short of satisfying the statutory definition of an employer in Section 760.02(7). Dawson suggested in his testimony that other individuals may have been present at Respondent's place of business during the period in which he performed services for Respondent. However, no testimony or evidence showed the precise weeks those individuals were supposedly working on behalf of Respondent or identified all of those individuals. Petitioner's testimony consisted of her blanket statement that Respondent had 15 or more employees during the 2000 calendar year. Petitioner did not identify the employees, did not identify the weeks such employees worked for Respondent, and did not show that the employees worked each calendar day for the 20 weeks mandated by statute. Petitioner's first day of employment was May 4, 2000, and her last day of employment was on October 20, 2000. Petitioner was not present in the workplace for a significant portion of the 2000 calendar year and is not competent to testify of her own knowledge regarding the number and identity of employees during the weeks Petitioner was not employed by Respondent. Petitioner referred to two other individuals in the course of the hearing as employees of Respondent. They were Mr. Reid Jackson (Jackson) and Mr. Barry Downey (Downey). Jackson began performing subcontracted services for Respondent in August of 2000. He was not an employee of Respondent and was not on Respondent's payroll. He was a subcontractor. Respondent made payments to Jackson & Escher, Inc., for the services provided by Jackson. Assuming arguendo that Jackson was an employee during the period in which he performed services for Respondent, the hypothetical addition of both Jackson and Dawson would not define Respondent as an employer in Section 760.02(7). The hypothetical addition of Jackson and Dawson would mean that Respondent maintained 15 or more employees for only 11 weeks during the calendar year of 2000. Those weeks would have been August 7, 14, 21, 28; September 4, 11, 18, 25; and October 2, 9, and 16. Petitioner identified Downey as a Director of Respondent but did not suggest the dates during which Downey served in that capacity. Dawson "think[s]" that Downey is a partner and general counsel for Respondent but cannot identify the dates that Downey purportedly acted in either capacity. Dawson also identified Downey as an "officer" and "owner" of Respondent. Dawson did not identify the purported office held by Downey, nor did he identify any dates on which Downey held a position of employment with Respondent. Respondent did not pay any salary or wages to Downey for the calendar years 1999 and 2000. Even if Downey were a director during the relevant period in this case, Downey was not an employee for 1999 or 2000 for purposes of Section 760.02(7). Respondent employed a maximum of five individuals during the 1999 calendar year. Respondent's evidence regarding its number of employees during 1999 was uncontroverted by Petitioner. Respondent did not employ 15 or more employees for 20 weeks during the 2000 calendar year. The week of October 16, 2000, was the single week in which Respondent employed 15 individuals for each working day of a calendar week. Respondent showed: the name of each employee employed by Respondent for each and every workweek for the 2000 calendar year; the weeks in which these employees worked for Respondent; and Respondent's total number of employees employed for each working day for each calendar week of 2000.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent is not an employer, within the meaning of Section 760.02(7), and dismissing the Petition for Relief/Charge of Discrimination for lack of jurisdiction. DONE AND ENTERED this 25th day of October, 2002, 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 25th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Douglas W. Desmarais, Esquire Smith & Downey, P.A. One West Pennsylvania Avenue Suite 950 Baltimore, Maryland 21204 Wajiha Khan 640 Emerson Drive, Northeast Palm Bay, Florida 32907 Robert D. Moses, Esquire Wiederhold, Moses & Rubin 560 Village Boulevard Brandywine Centre II, Suite 240 West Palm Beach, Florida 33409 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with numerous violations of Part VII of Chapter 468, Florida Statutes (1989), which are the statutory provisions regulating the talent agency business.
Findings Of Fact At all times material hereto, Respondent has been licensed as a talent agency in the State of Florida, having been issued license number TA 0000015. Respondent's last known address is 2803 East Commercial Boulevard, Suite #204, Fort Lauderdale, Florida 33308. At all times material hereto, Respondent has been married to Bill Daniels, a photographer, whose office is in the same building as the Respondent's agency. The Respondent and Bill Daniels share living quarters, expenses, profits from each other's incomes, and a joint personal checking account. At all times material hereto, Art Feldman (who is also sometimes known as "Art Field"), under the Respondent's direction, regularly spoke to, interviewed, and took money from artists who sought work through T.J. Norris Co., Inc. At all times material hereto, the Respondent and Art Feldman recommended only Bill Daniels as a photographer to the artists seeking to register with the Respondent. At all times material hereto, the Respondent, as well as Art Feldman and Ed Russell (who was another of Respondent's employees), were authorized by Bill Daniels to collect funds from and issue receipts to talent registered with the Respondent for photographic services and to obtain Bill Daniels picture releases from talent. The Bill Daniels receipts reflected that the Respondent "does not guarantee work or casting." At all times material hereto, Bill Daniels, at no charge to the Respondent, would make up photos from proofs of talent registered with the Respondent, a service Mr. Daniels did not provide to other talent agencies. Bill Daniels gave the Respondent the photography negatives of talent registered with Respondent. Facts regarding Counts One, Two, and Three -- Laurie Wells On or about February 2, 1988, Laurie Wells, after seeing Respondent's advertisement, took her daughter, Jena, to the Respondent's agency for the purpose of procuring modeling and/or acting work for her daughter, who was three years old at the time. The Respondent and Art Feldman told Ms. Wells that Jena would be perfect for an upcoming television series starring Zsa Zsa Gabor. The Respondent and Art Feldman both told Ms. Wells that she would not be able to use her own photographs of Jena, but would need to have a portfolio of photographs taken by Bill Daniels before Jena could be submitted for consideration for a role in the television series. Ms. Wells paid Mr. Feldman three hundred twenty- five dollars to register her daughter with the agency and to have photographs taken by Bill Daniels. Nevertheless, Jena was never called for casting for the television series and Jena never received any work through Respondent's agency. Ms. Wells never received a copy of the contract she signed with the Respondent's agency. At the time she was dealing with the Respondent's agency, Ms. Wells was a beginner in the talent industry. The photographs that Ms. Wells brought with her to her first meeting with the Respondent and Mr. Feldman were current photographs of Jena. The photographs that Ms. Wells brought with her to that first meeting were later used by other talent agencies from which Jena obtained work. Even though the Respondent and Mr. Feldman never guaranteed any work for Jena, they both made statements implying that there was lots of work available and that Jena would be perfect for some of that work. Facts regarding Counts Four, Five, and Six -- Donna Thomas On or about March 29, 1988, Donna Thomas, as a result of one of Respondent's advertisements, took her four-year-old granddaughter, Tami, to Respondent's agency to procure modeling work for Tami. Ms. Thomas spoke with both Art Feldman and with the Respondent. The Respondent told Ms. Thomas that her granddaughter was one of the most beautiful little girls they had had in the agency for a long time. The Respondent went on to state that she could definitely get Tami all kinds of work, but before they could do so Tami would have to have some pictures made. The Respondent also suggested that the pictures should be made as soon as possible. It was suggested to Ms. Thomas that she should have the photographs done by Bill Daniels. Ms. Thomas was not told of any other options for obtaining photographs. Ms. Thomas paid the Respondent two hundred fifty-five dollars to register Tami with the agency and to have photographs of Tami taken by Bill Daniels. The Respondent's agency never procured any work for Tami; the agency never even called about any work opportunities for Tami. At the time of her dealings with the Respondent's agency, Ms. Thomas was a beginner or novice to the talent industry. The evidence in this case is unclear as to whether the Respondent did or did not provide a copy of a contact to Ms. Thomas or to Tami's parents. Facts regarding Counts Sixteen, Seventeen, and Eighteen--Mr. and Mrs. Waldron On or about April 21, 1988, Mrs. Waldron, after seeing one of the Respondent's advertisements, took her son Richard to the Respondent to procure work for him in modeling or acting. Art Feldman told Mrs. Waldron that her son Richard was absolutely beautiful and was exactly what the agency was looking for. Feldman went on to say that he received calls every day from people who are looking for children just like Richard for movies, commercials, catalogs, and newspaper ads. Mr. Feldman went on to say that photographs had to be taken before the agency could do any work for Richard; that without a portfolio there was absolutely nothing the agency could do for Richard. Feldman urged Mrs. Waldron to use Bill Daniels for the photographs and described Bill Daniels as a "resident photographer" who did all of the agency's portfolios and who could get the photos done faster than other photographers. Mrs. Waldron signed a contract with the Respondent's agency and paid the Respondent three hundred fifty-five dollars to register Richard with the agency and have Richard's photographs taken by Bill Daniels. Mrs. Waldron never received a copy of the contract she signed with the Respondent. Richard did not procure work through the Respondent for over a year. When contacted about the lack of work, Art Feldman insisted that updated photographs be taken. When Mrs. Waldron refused new photographs until Richard obtained work, Richard was suddenly called for work as an extra on a movie called "Chains of Gold." Subsequently, Mrs. Waldron asked about other work for Richard, but Art Feldman said it was unavailable until more photographs were taken. At the time of her dealings with the Respondent, Mrs. Waldron was a beginner to the talent industry. Facts regarding Counts Twenty-two, Twenty-three, and Twenty-four--Marie Strong On or about July 11, 1988, Mrs. Marie Strong took her six-month-old son, Caleb, to Respondent's agency for the purpose of procuring work for Caleb in modeling and/or acting. Mrs. Strong met with Art Feldman who told her he could obtain work right away for Caleb, because there were several catalogs coming out within the next week or two that needed children Caleb's age. Feldman also told her that in order to do that she needed to get a professional portfolio taken right away by the agency's photographer, Bill Daniels. Feldman urged Mrs. Strong to pay a deposit on the photographs that very day and dissuaded her from taking time to discuss the matter with her husband. Mrs. Strong paid a deposit in the amount of one hundred thirty dollars the first day and returned the next day with the balance of one hundred ninety- five dollars. The photographs of her son Caleb were taken that day by Bill Daniels. Mrs. Strong was not told of any options to have the photographs taken by some other photographer. The Respondent's agency never procured any work for Mrs. Strong's son. The Respondent's agency never provided Mrs. Strong with a copy of a contract. At the time of their dealings with the Respondent, Mrs. Strong and her son were novices or beginners to the talent industry. Facts regarding Counts Twenty-five, Twenty-six, and Twenty-seven--Kory Bielski On or about September 8, 1988, after seeing Respondent's advertisement and calling for an appointment, Kory Bielski went to Respondent's agency for the purpose of procuring modeling and/or acting work. Mr. Bielski met with Art Feldman. Mr. Feldman told Mr. Bielski there was a lot of work he might be good for and that he wanted Mr. Bielski to sign up with the agency and get started. However, Mr. Feldman told Mr. Bielski that he had to have photographs taken before they would do anything. Mr. Feldman told Mr. Bielski that the agency had a photographer it worked with, and referred him to Bill Daniels. Mr. Feldman did not mention that Mr. Bielski could go to another photographer. Mr. Bielski paid Mr. Feldman a total of $425.00 to pay for the agency's registration fee and for photographs to be taken by Bill Daniels. The only work Mr. Bielski received through the Respondent's agency was two days of work as an extra in a movie. Mr. Bielski signed a contract with the Respondent's agency, but he was never given a copy of the contract. Facts regarding Counts Twenty-eight, Twenty-nine, and Thirty--Brian Cossack On or about October 14, 1988, in response to a newspaper advertisement, Brian Cossack went to Respondent's agency for the purpose of procuring voice-over work. Mr. Cossack met first with Art Feldman. Even though Mr. Cossack's primary interest was in obtaining voice-over work (in which the physical appearance of the artist is irrelevant), Mr. Feldman told him he would be perfect for a role in an upcoming horror film and that he would also be given TV commercial work. When Mr. Cossack said he had very little on-camera experience and did not feel prepared to take on a role of that type, Mr. Feldman continued to insist that he would be a shoe-in for the role. Mr. Feldman called the Respondent into the room and the Respondent also expressed assurances that Mr. Cossack would be perfect for movie and TV work. The Respondent went on to say that she would pay half of the cost of Mr. Cossack's photography session. After mentioning that he was relying on their assurances, Mr. Cossack paid $30.00 to register with the Respondent's agency and agreed to pay $300.00 for photographs to be taken by the photographer recommended by the Respondent. Mr. Cossack paid $100.00 towards the photographs on the first day. A few headshots were taken that day. A few days later, Mr. Cossack returned, paid the $200.00 balance, and some more photographs were taken. Mr. Cossack never received any of the photographs. Mr. Cossack gave both checks for the photographs to Mr. Feldman. The only work Mr. Cossack obtained through the Respondent's agency was work as an extra in a movie. He worked one day as an extra and declined an opportunity to work a second day as an extra. There is no clear and convincing evidence that the Respondent's agency failed to provide Mr. Cossack with a copy of a contract. Facts regarding Counts Thirty-three and Thirty-four--Chaim Kohl On or about December 28, 1988, Chaim Kohl took his four-year-old son, Roy, to Respondent's agency for the purpose of procuring modeling work for Roy. At that time Mr. Kohl was a beginner to the talent industry. Mr. Kohl met with Art Feldman and told Mr. Feldman that he wanted the agency to teach his son how to be a model and to obtain work for his son as a model. Mr. Feldman told Mr. Kohl that Mr. Kohl would have to have photographs of his son taken by Bill Daniels if he wanted the Respondent's agency to represent him. Mr. Feldman also said that as soon as the photographs were ready there would be lots of castings because the agency had lots of work with huge clients. Mr. Kohl agreed to have the photographs taken and ultimately paid $30.00 to register his son with the Respondent's agency and $300.00 for the photography session with Bill Daniels. Mr. Kohl's son never received any work through the Respondent's agency; he was never even called for any castings. Facts regarding Counts Thirty-five and Thirty-six--Harriet and Jim Nabors During February of 1989, Jim and Harriet Nabors went to Respondent's agency for the purpose of procuring modeling and/or acting work. At that time Mr. and Mrs. Nabors were both beginners to the talent industry. They went to Respondent's agency more or less on a lark, in response to one of the Respondent's newspaper advertisements. Mr. and Mrs. Nabors met with Art Feldman. Mr. Feldman told them that before any work could be sought for them, they would have to have photographs taken by Bill Daniels, who he described as being the agency photographer. No other photographic options were given. Mr. and Mrs. Nabors paid $30.00 each to register with Respondent's agency. Mrs. Nabors paid an additional $395.00 for photographs. Mr. Nabors paid $410.00 for photographs and $300.00 for four acting lessons. All of the checks were delivered to Mr. Feldman. Neither Mr. Nabors nor Mrs. Nabors received any work through the Respondent's agency. They received very few calls advising them of work opportunities. When Mrs. Nabors called about opportunities, she was told that business was slow. Facts regarding Counts Thirty-nine and Forty--Michelle Barton On or about September 7, 1989, Michelle Barton took her son, Nicholas, to Respondent's agency for the purpose of procuring modeling work for Nicholas. At that time Nicholas was almost a year old and Ms. Barton was a beginner to the talent industry. Ms. Barton met with Art Feldman and told him she wanted to obtain modeling work for her son. The son had red hair. Mr. Feldman said there was a big need for children with red hair and specifically mentioned that there would be casting opportunities during the next month. Mr. Feldman also told Ms. Barton that she would have to have a portfolio of photographs of Nicholas taken by Bill Daniels, who was described to her as the agency photographer or as a photographer affiliated with the Respondent's agency. She was not told of any other photographic options. Ms. Barton paid $30.00 to register her son with the Respondent's agency and paid $295.00 to have photographs taken by Bill Daniels. She later paid an additional $25.00 to obtain two extra photographic prints. Ms. Barton delivered all of the checks to Mr. Feldman. Ms. Barton never received any work for her son through the Respondent's agency. Ms. Barton later registered her son with another agency. The only photographs she sent to that agency were snap shots. The second agency called her on several casting opportunities. Facts regarding Count Forty-one--Marilyn Moore On or about March 21, 1990, after seeing the Respondent's advertisement in the telephone book, Marilyn Moore took her thirteen-month-old daughter, Jaime, to Respondent's agency for the purpose of procuring modeling work for Jaime. At that time Ms. Moore was a beginner to the talent industry. Ms. Moore met with Art Feldman and told him she wanted to obtain modeling work for her daughter. She had with her a small color photograph of the child that had been taken approximately a month earlier by Olan Mills. Mr. Feldman told Ms. Moore that he definitely thought her daughter had potential as a model, but that first she would have to be registered with the agency and they would need more photographs of the child. Mr. Feldman also told her that he had a photographer who could take the photographs. Ms. Moore asked if they could use the photographer she already had, and Mr. Feldman replied that the agency really needed eight-by-ten black and white photographs and that the agency photographer was in the next room and could do the photographs right then and there for a fee. Ms. Moore asked Mr. Feldman if she could use another photographer and Mr. Feldman replied that it was best to use the agency's photographer because they had worked together before and the agency photographer knew exactly what they needed. Ms. Moore registered her daughter with the Respondent's agency and wrote a $30.00 check to pay the registration fee. She left the payee's name blank on the check and delivered the check to Mr. Feldman. Someone later stamped the check with the name Bill Daniels as payee. Ms. Moore did not agree to have the agency's photographer take any photographs of her child and she declined the request that she make another appointment with the Respondent's agency. Later that same day, Ms. Moore stopped payment on the $30.00 check she had delivered to Mr. Feldman. A couple of days later, before he knew that payment had been stopped on the check, Mr. Feldman called Ms. Moore on the telephone and told her she could use her own photographs. Facts regarding Counts Forty-two, Forty-three, and Forty-four--Sonia Watson On or about December 7, 1988, after seeing the Respondent's advertisement in a newspaper, Sonia Watson took her eight-month-old daughter, Jessica, to Respondent's agency for the purpose of procuring modeling work. At that time Mrs. Watson and her infant daughter were beginners to the talent industry. Because she was a beginner, Mrs. Watson went to the Respondent's agency primarily for the purpose of obtaining information. Mrs. Watson met with Art Feldman. Mr. Feldman was very encouraging about the modeling prospects for Mrs. Watson's child and he told Mrs. Watson the agency would have no problem finding jobs for her daughter and that Mrs. Watson should not worry about the money for the agency's service or for the photographs because she would be able to make it back easily. Mr. Feldman told Mrs. Watson she would have to pay a $30.00 registration fee, a $15.00 fee for a "portfolio" photograph, and a $300.00 fee for photographs and for hiring the agency to find jobs for her daughter. During the first visit Mrs. Watson paid the $30.00 registration fee and the $15.00 "portfolio" fee. She later made an appointment to have the photographs taken and paid half of the money for the photographs. Thereafter, half of the photographs were taken by Bill Daniels, who was described by Mr. Feldman as "our photographer." About two months later, Mrs. Watson returned and paid the remaining half of the money for the photographs and Bill Daniels took the other half of the photographs. Mrs. Watson paid all of the money to Mr. Feldman. Mrs. Watson was supposed to receive five 8 x 10 photographs of her child. The photographs were never provided to her. Mrs. Watson signed a contract after she paid all of the money. She did not receive a copy of the contract she signed. Before agreeing to have Bill Daniels take her child's photographs, Mrs. Watson had found a photographer who would do a photographic "portfolio" of her daughter for $90.00 or $95.00. When she told Mr. Feldman about that possibility, Mr. Feldman advised against it and told her she should use the agency's photographer because the photographer knew the companies the agency dealt with, knew the positions and things the companies were looking for, and, also, that the $300.00 fee included hiring him as her agent. Mrs. Watson's child never received any work through the Respondent's agency. Facts regarding Counts Fifty and Fifty-one--Mr. and Mrs. Trent On or about August 12, 1989, after seeing the Respondent's advertisement in a newspaper, Mr. V. G. Trent took his two daughters, Gayle and Shirene, to Respondent's agency for the purpose of procuring modeling work for Gayle and Shirene. At that time, Mr. Trent and his two daughters were all beginners to the talent industry. The Trents met with Art Feldman. Mr. Feldman said that, because of their tall and exotic looks, the two girls would be working in no time. Mr. Feldman told them that they would need photographs and that the agency would take the photographs for them. Mr. Trent was not advised of any other options regarding the photographs. Mr. Feldman told Mr. Trent it would be in the best interest of the girls for the agency to take the photographs because the agency would be representing the girls and the agency would know what pictures to select. Mr. Trent agreed to Mr. Feldman's suggestions regarding the photographs and agreed to pay $760.00 to have both girls registered with the Respondent's agency and to have both girls photographed by Bill Daniels. The registration was $30.00 for each girl and the photography was $350.00 for each girl. During the first visit Mr. Trent paid a down payment towards the $760.00 and the balance was paid by his wife during a subsequent visit. Neither of Mr. Trent's daughters ever received any work through the Respondent's agency. Facts regarding Counts Fifty-four and Fifty-five--Helena Jackson On or about February 25, 1988, Helena Jackson, also known as Helena Steiner-Hornsteyn, and her teenage daughter, Annika, went to Respondent's agency for the purpose of procuring modeling and/or acting work for Annika. Following conversations with Art Feldman and the Respondent, Mrs. Jackson and her daughter ultimately paid to register with the Respondent's agency and to have photographs taken by Bill Daniels. There is no clear and convincing evidence as to what representations were made to Mrs. Jackson and her daughter by Mr. Feldman or the Respondent. Facts regarding photography needs of beginners In the opinion of experts in the talent agency business, beginning talent should spend as little as possible for photographs until they learn more about the business, decide whether they like the business, or begin to receive regular bookings. In the case of infants and children up to the age of about 10 or 12 years of age, it is sufficient for beginning talent to use snapshots that have been enlarged up to about 5 x 7 inches. An adequate supply of such enlargements can be obtained for approximately $40.00. Everyone in the talent industry is aware of the fact that babies and young children change in appearance quite rapidly and they are not expected to submit professional photographs for castings. In the opinion of experts in the talent agency business, it is sufficient for beginning talent to limit their photography expense to obtaining an 8 x 10 glossy headshot. As one expert explained, ". . . to go beyond an 8 x 10 glossy headshot, to me, is ridiculous. And, I think is a waste of money." A photo session limited to headshots is available from Bill Daniels for $125.00 and is available for less from other photographers in the area of the Respondent's agency. In the opinion of experts in the talent agency business, inexperienced talent are very susceptible to suggestions made by talent agents and have a tendency to follow agents' suggestions due to their inexperience. Because of this tendency, it constitutes undue influence for a talent agent to recommend a specific photographer to a beginning talent without also advising the talent that there are other less expensive alternatives available. Allegations on which no evidence was submitted In DOAH Case No. 90-5328 there is no competent substantial evidence of the Respondent's conduct alleged in either Count One or Count Two, both concerning Elizabeth Kingsley. In DOAH Case No. 90-4799 there is no competent substantial evidence of the facts alleged in any of the following counts: Count Seven, concerning Sarah (Tina) Polansky Count Eight, concerning Sarah (Tina) Polansky Count Nine, concerning Sarah (Tina) Polansky Count Ten, concerning Tracy Wilson Count Eleven, concerning Tracy Wilson Count Twelve, concerning Tracy Wilson Count Thirteen, concerning Michael Pry Count Fourteen, concerning Michael Pry Count Fifteen, concerning Michael Pry Count Nineteen, concerning Julie Lane Count Twenty, concerning Julie Lane Count Twenty-one, concerning Julie Lane Count Thirty-one, concerning Michelle Morrill Count Thirty-two, concerning Michelle Morrill Count Thirty-seven, concerning Kathryn Bischoff Count Thirty-eight, concerning Kathryn Bischoff Count Forty-five, concerning Marilyn Abbey Count Forty-six, concerning Marilyn Abbey Count Forty-seven, concerning Gary Janis Count Forty-eight, concerning Gary Janis Count Forty-nine, concerning Carol Mulchay Count Fifty-two, concerning August Yamond Count Fifty-three, concerning August Yamond Count Fifty-six, concerning Marie Tortu Count Fifty-seven, concerning Marie Tortu Count Fifty-eight, concerning Ilandie Joseph Count Fifty-nine, concerning Marcia Burke Count Sixty, concerning Marcia Burke The Respondent has prior violations of Chapter 468, Florida Statutes. In DPR Case Number 102652, the Respondent entered a Settlement Stipulation agreeing to pay a fine in the amount of two hundred dollars for a violation of Section 468.412(6), Florida Statutes (1988), regarding advertising by a talent agency. In DPR Case Numbers 0110491 and 0106073, DOAH Case Number 89-5521, the Respondent was found to have violated Section 468.410(3), Florida Statutes, on three (3) counts and Section 468.402(1)(t), Florida Statues, on two (2) counts. The Respondent was ordered to pay a fine in the amount of two thousand dollars.
Recommendation Based on all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: In Case No. 90-5328, dismissing all charges in the Administrative Complaint for failure of proof. In Case No. 90-4799, dismissing the charges set forth in the following counts of the Administrative Complaint for failure of proof: Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Nineteen, Twenty, Twenty-one, Thirty, Thirty-one, Thirty-two, Thirty-seven, Thirty-eight, Forty-five, Forty-six, Forty-seven, Forty- eight, Forty-nine, Fifty-two, Fifty-three, Fifty-four, Fifty-five, Fifty-six, Fifty-seven, Fifty-eight, Fifty-nine, and Sixty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(s), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts One, Four, Sixteen, Twenty-two, Twenty-five, Twenty-eight, Thirty-three, Thirty- five, Thirty-nine, Forty-one, Forty-two, and Fifty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(t), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty- six, Forty, Forty-three, and Fifty-one. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(b), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Three, Eighteen, Twenty- four, Twenty-seven, and Forty-four. In Case No. 90-4799, imposing the following penalties for the violations described above: An administrative fine in the amount of $400.00 for each of the 28 violations found above, for a total of administrative fines in the amount of $11,200.00. Revocation of the Respondent's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1993. MICHAEL M. PARRISH 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 1st day of March 1993. APPENDIX The following are my specific rulings on the proposed findings of fact submitted by all parties. The following general observations are made in order to facilitate an understanding on the basis for the findings of fact that have been made as well as the basis for the findings of fact that have been rejected. There is no great dispute about most of the basic facts in these cases. There is quite a bit of dispute about numerous details, as well as disputes about what inferences should be drawn from the facts. In resolving these differences I have, for the most part, been more persuaded by the versions described by the Petitioner's witnesses than by the versions described by the Respondent and her witnesses. In resolving such differences I have especially considered such matters as any motive or bias of each witness, the apparent candor or lack of candor of each witness, the extent to which the testimony of each witness appeared to be logical or illogical, and the extent to which the evidence of each witness appeared to be consistent or inconsistent with other evidence in these cases. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting conclusions of law, rather than proposed findings of fact. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance, but with some details corrected. Paragraphs 13, 14, 15, and 16: Accepted. Paragraph 17: Accepted in substance. Paragraph 18: First sentence accepted; second sentence rejected as not supported by clear and convincing evidence. Paragraph 19: Accepted. Paragraph 20: Accepted. Paragraphs 21 and 22: Accepted in substance. Paragraphs 23, 24 and 25: Accepted. Paragraph 26: First sentence rejected as unnecessary details. Second sentence accepted. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Accepted. Paragraph 31: Rejected as containing numerous inaccurate details. Some somewhat similar findings have been made. Paragraph 32: Accepted in substance. Paragraphs 33 and 34: Accepted in substance. Paragraph 35 First sentence accepted. First half of second sentence rejected as not supported by clear and convincing evidence. Second half of second sentence accepted. Paragraphs 36, 37, and 38: Accepted in substance. Paragraphs 39 and 40: Accepted. Paragraph 41: Accepted in substance. Paragraph 42: Accepted. Paragraph 43: Accepted in substance. Paragraph 44: Accepted Paragraph 45: Accepted. Paragraph 46: Accepted in substance. Paragraph 47: Rejected as not fully supported by the evidence and as, in any event, subordinate and unnecessary details. Paragraph 48: Accepted in substance. Paragraphs 49, 50, 51, 52, 53, and 54: Accepted. Paragraph 55: Accepted in substance. Paragraphs 56 and 57: Accepted. Paragraphs 58 and 59: Accepted that Mrs. Jackson paid to register herself and her daughter and to have Bill Daniels photograph her and her daughter. The remainder of these paragraphs are rejected as irrelevant details or as not supported by clear and convincing evidence. Mrs. Jackson was a difficult witness, both on direct examination and on cross-examination. She was often argumentative, unresponsive, rambling, and disjointed during her testimony. Her testimony was far from clear and was not convincing. Paragraphs 60, 61, and 62: Accepted in substance. Paragraph 63: Rejected as not fully supported by the record and as, in any event, irrelevant to the issues in this case. Paragraph 64: Accepted in substance, with additional details. Findings proposed by Respondent: With regard to the proposed findings of fact submitted by the Respondent, it is first noted that the Respondent's proposals are virtually impossible to address with specificity because, for the most part, they are comprised of summaries of testimony (testimony both favorable and unfavorable to the Respondent), rather than being statements of the specific facts the Respondent wishes to have found. In this regard it is perhaps sufficient to note that most of the Respondent's summaries of the testimony are essentially accurate summaries of the testimony at hearing, even where the summaries contain assertions that conflict with each other. As noted above, I have resolved most of those conflicts in favor of the versions put forth by the Petitioner's witnesses. Inasmuch as the Respondent has chosen to summarize testimony rather than make proposals of specific facts to be found, it would serve no useful purpose to embark upon a line-by-line discussion of all of the summaries. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gregory F. Esposito, Esquire Suite 9 8000 Wiles Road Coral Springs, Florida 33065 Anna Polk, Executive Director Board of Talent Agencies Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, James R. Sherman, has filed a claim against the bond in the amount of $299.00 alleging that Passport failed to perform on certain contracted services. In response to a mail solicitation offer for a five-day, four-night cruise to the Bahamas, in May 1990 petitioner telephoned a Tampa, Florida telemarketeer then using the name of Euno Discount Distributors. After speaking with the telemarketeer, petitioner agreed to purchase the package for a price of $299.00. A charge in this amount was placed on his credit card. During the course of the telephone conversation, petitioner was never told that there were various restrictions on travel dates or that such dates had to be secured at least ninety days in advance. Euno Discount Distributors (or an affiliated entity) had purchased an undisclosed amount of travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by the telemarketeer, and the certificates carried Passport's name, address and logo. After receiving his travel certificates, petitioner learned for the first time that he could not travel on a weekend when using his certificates and that other restrictions applied. Because of these restrictions, on January 7, 1991, petitioner requested a refund of his money. In response to his inquiry, Passport advised petitioner to contact "the sponsor from whom (he) purchased the package." By now, however, the telemarketeer was out of business. To date, petitioner has never received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $299.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995. COPIES FURNISHED: James R. Sherman 3198 Bailey Road Dacula, Georgia 32114 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact At all times relevant hereto, Donald C. Munafo was certified by the Department of Education and employed on continuing contract by the Pinellas County School Board as a physical education instructor at the 16th Street Middle School in Clearwater. He has been employed by the Pinellas County School Board for approximately 15 years. Munafo has been involved in photography for a number of years and has done professional photography for ten years as a sideline to his primary occupation as a school teacher. He is a member of Bay Photographic Association located in the Tampa Bay area, which is an affiliate of Florida Professional Photographers. In May 1984 Richard Norgrove, who also taught at 16th Street Middle School, formed Edventure Media, Inc., to provide himself and his wife with a tax shelter and to produce educational and training videos. Knowing Munafo to be a professional photographer, Norgrove consulted with him as to ideas on equipment Norgrove needed. After forming the corporation and making a few training films, Norgrove decided to produce a video of a "cat fight," which involves two females in brawl. He advertised for models to engage in a wrestling match and employed two who responded to his ad. Norgrove prepared a simple script and did the filming at his home. He requested Munafo to take some stills during the video filming to use to advertise copies of the cat fight for sale. To accommodate Norgrove, Munafo took still photographs of the models while Norgrove made the videotape of the girls tearing each others. clothes off and simulating a real fight. By the end of the video each girl was wearing only panties. This video was titled "The Dress." Shortly thereafter, Norgrove decided to make another cat fight video and again advertised for models. One of the girls answering the ad was Lisa Anderson. Norgrove again asked Munafo to take still shots while Norgrove made the videotape. Again Munafo agreed to help in the endeavor, knowing that the still shots would be used to promote the video and/or sold. Munafo received no compensation from Norgrove other than the cost to Munafo for supplies and for developing the pictures. During the taking of this video, which was titled "The Boyfriend," both of the models were reduced to complete nudity. Lisa Anderson was one of the girls involved in the video of "The Boyfriend." Lisa Anderson had answered Norgrove's ad by telephone, and they first met at a bar where Lisa was served alcoholic beverages. She had told Norgrove she was 23 years old and was anxious to make some money modeling and did not object to removing her clothes. Lisa subsequently signed a release stating that she was over 18 years old. As a matter of fact, Lisa was 17 when the video and subsequent photographs of her were taken. Lisa did not testify in these proceedings, but led Norgrove to believe she had been married twice and at the time the video was made was living with two men. One newspaper article (Exhibit 20) stated she was the mother of two children. Norgrove packaged "The Dress" and "The Boyfriend" on one cassette (Exhibit 8) and advertised it for sale in adult magazines under the title "Battling Beauties." He sold between 20 and 50 of these cassettes for approximately $60 each. Munafo took no part in promoting the cassette, mailing the cassettes, nor did he receive any percentage of the money Norgrove received for the sale of the cassettes. Following the filming of "The Boyfriend" Lisa called Norgrove several times to see if he had more jobs for her since she needed to make some money. Finally, Norgrove told her that he might be able to sell some nude photos of her to a publishing house but could not guarantee their sale. He offered to take the pictures and if they sold split the proceeds with her. Lisa agreed and Norgrove decided his sailboat would provide a good background location for the photo sessions. Again he requested Munafo to come along and take the photographs while he, Norgrove, ran the sailboat. At the appointed time they sailed out into open water where Lisa stripped and assumed various poses while Munafo took pictures. These pictures were admitted into evidence as Exhibits. Upon returning to shore, the three of them went to Munafo's house where Norgrove did another video of Lisa in the nude doing exercises. During the making of this video Munafo was downstairs and came up to the studio less than a minute before the video was completed. At this time Lisa was jumping on a small trampoline and Munafo suggested to Norgrove that he take some shots from the floor looking up. For the photos of Lisa taken in the sailboat, Munafo was again reimbursed only for the film and cost of developing the pictures he took. All told Eventure Media, Inc., paid Munafo less than $100.00 for the costs he incurred in shooting the pictures requested by Norgrove. Munafo's testimony was uncontradicted and corroborated by Norgrove that all Munafo expected to receive from his participation were his expenses and the expectation that he would meet a model he could later employ to pose for a figure study. Munafo is a serious photographer who participates in many of the competitions sponsored by photography groups, both local and statewide. Exhibit 16 was admitted as a copy of a figure study Munafo entered in a photo contest and took second place. In the interim the local police received information that Norgrove had been making pornographic videotapes and they alerted the United States Postal Inspectors. Their investigation revealed that Lisa Anderson was 17 years old at the time the videos and photographs were taken. 18 USC §2251, et seq., makes it a federal crime to use anyone under the age of 18 as a participant in a sexually explicit film or to transmit such film through the United States mail. After obtaining copies of the video cassettes and still photographs, the federal authorities obtained an indictment against Norgrove and Munafo and arrested them on March 4, 1985. The time of their arrest was the first inkling either had that Lisa Anderson was under the age of 18. News of the arrest of three Pinellas County school teachers (Norgrove's wife was also arrested) charged with distributing sexually explicit films involving minors received wide dissemination from the local press and, by reason of the implications of "kiddie-porn," the events leading to the trial in federal court and the results of that trial were closely followed and reported by the press. Prior to the commencement of the trial, the Norgroves negotiated a plea of guilty of conspiracy and received a lenient sentence. Munafo went to trial and was acquitted of all charges by the jury (Exhibit 17). Following the arrest of Munafo and the Norgroves, they were suspended by the School Board and hearings were requested. The Department of Education preferred charges to discipline their certificates based on the same allegations made by the School Board in their suspensions, and all cases were consolidated for hearing. Continuances were granted to await the outcome of the federal proceedings before conducting these administrative proceedings. Following the Norgroves negotiating a plea in the federal court trial, they withdrew their request for a Section 120.57(1), Florida Statutes, hearing and were dropped from these proceedings. No evidence was presented that Respondent showed explicit sexual films or pictures to other teachers as is alleged in the charging document by the Superintendent. Nor was any testimony presented to show that Respondent's effectiveness in the school system was seriously reduced by the publicity associated with his arrest, trial and subsequent acquittal. The primary, if not sole, basis for the disciplinary action proposed by the School Board and the Department of Education is whether the actions of Munafo in taking sexually explicit photographs of Lisa Anderson and another woman constitute immorality, misconduct in office, gross immorality or moral turpitude, or conduct which seriously reduces his effectiveness in the Pinellas County school system. The photographs which form the basis of these charges are similar to those published in adult magazines such as Penthouse, Hustler, Playboy, Cavalier, etc., which are transmitted through the United States mail and are displayed on the magazine racks of vendors of newspapers and magazines in drugstores, airports, bookstores, and newsstands open to the general public. Petitioner produced two witnesses to testify to the immorality of one who would take explicit sexual photographs. Neither of these witnesses is a professional photographer although one teaches photography in a Pinellas County school. He did not believe a teacher should be held to a higher moral standard respecting activities totally unassociated with the school than is a member of the general public, but his personal moral convictions would preclude him from taking such pictures. Petitioner's other witness, John F. Joyce, Ed.D., opined that it was immoral for a school teacher to take such photographs as were taken by Respondent. Dr. Joyce, however, did not think it immoral for a teacher to look at pornographic photographs in Hustler magazine with prurient interests or even to be editor of such a magazine. How the work of an editor, in deciding which I pornographic photographs will sell the most magazines and still be within the letter of the law so as to avoid prosecution or a ban of the sales in a magazine, can be all right while the mechanic (or artist), who opens the shutter of the camera to expose the film and record the pornographic pose is immoral, completely eludes me. Accordingly, little weight is accorded this opinion. Nor is the age of Lisa Anderson at the time these photographs were taken relevant to the charge of immorality. Respondent certainly thought he was taking a photograph of a woman over the age of 18; and such opinion was justified by the physical appearance of Lisa, by the model release form she signed (Exhibit 10) stating she was over 18, by her marital history, and by her reported living arrangements (with two men). The photographs taken on the sailboat (Exhibits 1-5) clearly fit the category of sexually explicit and are more pornographic than are the stills Munafo took during the videotaping of he cat fights. Accordingly, the outcome of these proceedings can be said to stand or fall on whether the taking of these photographs (Exhibits 1-5) constitutes immorality or gross immorality by a school teacher. In making this ultimate finding of fact it is significant that such photographs are protected by the First Amendment provided the model is over 18 that such photographs can be sent through the United States mail system without any violation of the law (again if the model is over 18) that the sole basis for the criminal charges preferred against this Respondent was the age of the model used that it would not be considered an offense involving moral turpitude or jeopardize any license they have if a lawyer, doctor, banker, or broker took such photographs that Munafo was acquitted of these criminal charges that in these criminal charges specific intent is not an element of the offense and that Munafo reasonably believed that Lisa Anderson was over 18 at the time these photographs were taken. Lisa Anderson had no apparent connection to the Pinellas County school system and none of the filming had any connection to a school or school system or in any way indicated the model was a minor. From these findings comes the ultimate finding of fact that taking these photographs of Lisa Anderson does not constitute immorality, gross immorality, or misconduct in office.
