The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. In the timeframe relevant to this proceeding, the 2011- 2012 school year, Respondent was employed as the lead technology teacher, pursuant to an annual services contract, at Miami Norland High School ("Norland"), a public school in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. Events Giving Rise to This Proceeding Certification Examinations Norland offers courses in Adobe Photoshop ("Photoshop") and Adobe Dreamweaver ("Dreamweaver"). Each course offers an industry certification examination. The exams are provided by Certiport, an independent provider of educational, assessment, examination, and certification programs. To prepare for a certification exam, the student takes practice exams. Performance on the practice exams indicates readiness to take the certification exam, so it is important that the student perform well on the practice exams prior to taking the certification exam. Upon reaching a certain achievement level on the practice exams, indicating readiness to take the certification exam, the student goes to another classroom to take the certification exam. The exams are taken on a computer. Nothing but the computer is allowed on the desk during the exam. Students are informed of the rule that they are not allowed to have or use papers, notebooks, or any other materials when taking the exam. If the student passes the exam, he or she receives a certificate. In the 2011-2012 school year, the certification exams for Photoshop and Dreamweaver were administered more than once per school day at Norland. As part of his responsibility as lead technology teacher at Norland, Respondent proctored the certification exams for the Photoshop and Dreamweaver courses during the 2011-2012 school year. To be authorized to proctor the certification exams, Respondent entered into a Proctor Agreement with Certiport ("Agreement"). The Agreement required, among other things, that Respondent ensure the security of the exam and supervise certification candidates taking the exam to ensure that no notes containing the content of the test questions or answers were used during the exam. The Agreement provided that in the event of any evidence of improper conduct by the candidate or violation of the exam process, the proctor must terminate the exam, confiscate the exam materials, and immediately notify Certiport. Adherence to the Agreement was required for Respondent to be authorized to serve as a proctor for the certification exams. Alleged Cheating on Certification Exams D.J. was enrolled as a student in Mr. Halligan's Photoshop course at Norland during the 2011-2012 school year. Despite never having obtained a passing score on a practice exam, D.J. was taken out of Halligan's class to take the Photoshop certification exam.2/ D.J. took the Photoshop certification exam twice, and sat for it during her regularly scheduled Photoshop class.3/ D.J. took the certification exam for the second time on April 3, 2012, and passed it on her second sitting. Respondent proctored the Photoshop certification exam on April 3, 2012, during the period when D.J. took the exam and passed. D.J. testified, credibly, that Respondent allowed her to use a package containing the answers during the exam, and that he told the other students taking the exam during that period that they also could use assistance materials to take the exam. After finding out that she had passed the exam, D.J. returned to her Photoshop class and told Halligan that she had passed. She also told him that Respondent had allowed her and others to use materials to assist them while taking the exam. D.J. testified, credibly, that she had never been a student in Respondent's class, that he had never disciplined her, and that she had never had problems with him. Accordingly, she had no motivation to fabricate her statement that Respondent had allowed her to cheat on the exam. N.A. also attended Norland during the 2011-2012 school year and also took Halligan's Photoshop course. N.A. had never achieved the minimum passing score on the practice exams, but nonetheless was ordered to take the Photoshop certification exam.4/ She sat for the Photoshop certification exam three times and passed it on her third sitting, on April 3, 2012. N.A. credibly testified that Respondent had allowed her to use the practice exam package to take the certification exam.5/ After passing the exam, N.A. returned to Halligan's class and told him that she had passed. Halligan asked her how she had passed and she told him that Respondent had allowed her to use her practice exam package. Halligan asked her to provide a written statement regarding what had happened. She prepared a written statement but subsequently retracted it. Halligan and another technology teacher, Mr. Gant, contacted the Office of the Inspector General for Miami-Dade County Public Schools ("OIG") and reported that students who were not capable of passing the certification exams were, in fact, passing. The OIG conducted an investigation into alleged violations regarding the Adobe and Dreamweaver certification exam protocol at Norland. As part of this investigation, Ellen Roelofs, along with another OIG investigator, interviewed N.A. and asked her if she had cheated on the certification exam. N.A. initially denied having cheated but then confessed to having done so.6/ The OIG investigation ultimately substantiated allegations that Respondent had allowed students to cheat on the Photoshop and Dreamweaver certification exams. Following completion of the OIG investigation, a conference for the record ("CFR") was conducted between Respondent; Joyce Castro, a District Director for the Miami-Dade County Public Schools Office of Professional Standards; and others regarding charges that Respondent allowed students to cheat on the Photoshop and Dreamweaver certification exams, in violation of Petitioner's policies 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 2605, Research and Evaluation. Based on the OIG report findings, the Office of Professional Standards determined that Respondent could not be trusted in the future to proctor the certification exams. Following the CFR, the matter was presented to a disciplinary review team, which recommended that Respondent be terminated from his employment. On October 16, 2013, Petitioner took action to suspend Respondent without pay and terminate his employment. Respondent's Defenses Respondent verified that as part of his duties as lead technology teacher at Norland, he proctored the Photoshop and Dreamweaver certification exams in the 2011-2012 school year. Respondent denied having given students the answers to the exams or otherwise allowing them to cheat on the exams. The undersigned found Respondent's testimony less than forthcoming and not credible. Respondent also presented the testimony of Rhailyn Campbell, a student at Norland during the 2011-2012 school year. Campbell testified that he took the Dreamweaver certification exam on April 3, 2012, midday; that Respondent did not tell him or any other students that they could cheat on the exam; and that he did not observe any other students cheating or being allowed to cheat. Campbell denied having been interviewed by the OIG during its investigation of Respondent. However, Roelofs testified, credibly, that she did, in fact, interview Campbell during the OIG investigation. This testimony was substantiated by the Report of Interview she prepared memorializing that interview. Based on this evidence, Campbell's testimony is deemed not credible.7/ Respondent also presented the testimony of Haresh Seogopaul, T.O., and Dean Anthony Richards, students at Norland in the 2011-2012 school year. Seogopaul and T.O. testified that they took the Dreamweaver8/ certification exam on January 25, 2012. Richards took the Photoshop certification exam on January 25, 2012. Each testified that he did not cheat on the exam, that Respondent did not allow him to cheat on the exam, and that Respondent did not allow others to cheat on the exam. This testimony does not contradict D.J.'s and N.A.'s credible testimony that they were allowed to cheat on the Photoshop certification exams conducted on April 3, 2012; it merely shows that Respondent did not allow students to cheat on an entirely different day, January 25, 2012. Through the testimony of Roelofs, Respondent offered the Report of Interview ("Report") for K.E., D.C., and D.W., each of whom took the Photoshop certification exam on April 3, 2012, and each of whom were interviewed by Roelofs during the OIG investigation. Each Report was prepared by Roelofs and contained a summary of the statement made by the student being interviewed, at the time he was interviewed. Each summary reflects that the student stated that Respondent did not allow students taking the certification exam to cheat on the exam.9/ Clearly, Roelofs has no personal knowledge of the facts and events that are described in the summaries of these students' statements, and the statements themselves constitute unsubstantiated hearsay that does not supplement or explain other competent evidence in the record. As such, these reports and their contents do not constitute competent substantial evidence on which findings of fact may be based. Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate his employment as a teacher on the basis of just cause——specifically, misconduct in office under Florida Administrative Code Rule 6A-5.056 and violation of Petitioner's policies 3210, 3210.01, and 2605. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that just cause exists, on these bases, to suspend Respondent without pay and terminate his employment. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Misconduct in Office Misconduct under rule 6A-5.056(3) requires violation of the Code of Ethics of the Education Profession, as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida, as adopted in rule 6B-1.006. Here, the evidence establishes that Respondent allowed students to cheat on the Photoshop certification exams administered on April 3, 2012. In doing so, Respondent failed to exercise the best professional judgment and integrity and failed to achieve and sustain the highest degree of ethical conduct, in violation of rule 6B-1.001. Respondent violated rule 6B-1.006 by failing to maintain honesty in all professional dealings. He also violated this rule by submitting fraudulent information on documents in connection with his professional activities, both in allowing or enabling students to cheat, and for his role in generating fraudulent passing scores for students who cheated on the exams. Rule 6A-5.056(3)10/ requires, for a finding of misconduct, a showing that the violation is sufficiently serious to impair the individual's effectiveness in the school system. Here, the evidence establishes that as a result of his conduct, Respondent's effectiveness in the school system is impaired. Castro persuasively testified that Respondent could not be trusted in the future to proctor exams. Moreover, Respondent violated the Agreement with Certiport, so can no longer serve as proctor for the Photoshop and Dreamweaver certification exams. For these reasons, it is determined that Respondent's effectiveness in the school system is impaired. Accordingly, the preponderance of the evidence establishes that Respondent's conduct at issue in this proceeding constitutes misconduct in office pursuant to rule 6A-5.056(3). Violation of Petitioner's Policies Petitioner has charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which requires that instructional staff maintain honesty in all professional dealings and not submit fraudulent information on any document in connection with professional activities. Here, the evidence establishes that Respondent did not maintain honesty in his professional dealings in connection with his proctoring duty to maintain the integrity of the Photoshop certification exams. Further, he submitted fraudulent information on documents in connection with his professional activities, in allowing or enabling students to cheat and for his role in generating fraudulent passing scores for students who cheated on the certification exams. Accordingly, it is determined that Respondent violated Policy 3210. Petitioner also has charged Respondent with violating Policy 3210.01, Code of Ethics. Here, the evidence establishes that Respondent did not abide by Petitioner's Code of Ethics. His actions in allowing cheating on the certification exams show that he did not make the well-being of the students and the honest performance of his professional duties his core guiding principles. Through his actions, he failed to protect and advance the Miami-Dade County Public School District and its students. Accordingly, it is determined that Respondent violated this policy. Additionally, Petitioner has charged Respondent with violating Policy 2605, Research and Evaluation. Policy 2605 incorporates the test administration and security standards set forth in the document titled "Miami-Dade County Public Schools: Standards, Guidelines, and Procedures for Test Administration and Test Security"(November 2007)(hereafter "Test Security Document"). These standards require, among other things, that all testing activities, including supervision and monitoring, be conducted in a manner that ensures the security of test content. The standards also require that all standardized tests be administered in accordance with established administration and test security procedures as outlined in program guides for each testing program; that students shall not be assisted in answering test questions by any means or by any person; and that test proctors must actively monitor students to discourage cheating and must record, and immediately notify the principal and test chairperson of, any test administration irregularity or security breach. Here, Respondent's professional duties included serving as proctor for the Photoshop and Dreamweaver certification exams for Norland. Respondent's conduct in allowing students to cheat on the Photoshop certification exams violated the foregoing test administration and security standards and, thus, violated Policy 2605.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding its suspension of Respondent, Emmanuel Fleurantin, without pay and terminating his employment as a teacher. DONE AND ENTERED this 29th day of July, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of July, 2014.
The Issue The issue in this case is whether a contract on Florida Department of Law Enforcement Bid No. B-904 should be awarded to Petitioner, E. L. Cole Photography, Inc., as the only responsive bidder.
Findings Of Fact Respondent, the Florida Department of Law Enforcement (hereinafter referred to as the "Department"), issued an Invitation to Bid (hereinafter referred to as the "ITB"), designated Bid No. B-904, on May 5,1999. The ITB requested bids on photographic film and paper for use by is crime laboratories. No challenges to the specifications of the ITB were filed. Seventy-nine items of photographic film and paper were listed in the ITB. Bidders were requested to provide a unit price for each item. Bidders were also requested to provide a total price for the Department's amount of film and paper it estimated its laboratories would use. There was not a minimum or maximum amount the Department could purchase under the contact. The total quantities listed in the ITB were estimates only. The successful bidder was required to provide the items listed in the ITB for the costs listed in the winning bid for any amount of the items purchased by the Department. One of the 79 items for which bids were requested in the ITB was duplicated. The item was Catalog Number 171-6042, Kodak C.P.O. [contrast process ortho film] 4/5 (100sht/pkg) (hereinafter referred to as the "Duplicated Item"). The Duplicated Item was listed as item 3 on numbered page 10 and as item 16 on numbered page 12 of the ITM. On page 10, item 3 was listed as Catalog #171-6042 and a Description of Kodak C.P.O. 4X5 (100sht/pkg). The Estimated Quantity was 470 pkg. On page 12, item 16 was listed as Catalog #171-6042 and a Description of Contrast Process Ortho Film 100/4X5. The Estimated Quantity was 75 bx. The duplication was the result of a response to a 1996 ITB, Bid No. B-843 (hereinafter referred to as the 1996 ITB). In the 1996 ITB the Department had listed items similar to those listed in the instant ITB. The Duplicated Item was correctly described in one location in the 1996 ITB, but was also incorrectly described in the 1996 ITB. A bidder corrected the description in its response. This correction caused the Duplicated Item to be listed in two locations. When the ITB was prepared, the Department used the same list of items it had used in the 1996 ITB, as corrected. The Department failed to discover the Duplicated Item. The ITB included General Conditions used in most, if not all, invitations to bid. The ITB also included specific conditions. Among the specific conditions the ITB included the following: BID EVALUATION There are two (2) biddable categories for photographic supplies in this Invitation to Bid that are separated into Attachment "A" - Film, Black & White and Color and Attachment "B" - Paper, Black & White and Color. Vendors may bid on either one or both of the attachments, but vendors are to price the attachments separately. Vendors must price all the items listed on the attachment(s) unless there is a duplication of an item or, an item has been discontinued by the manufacturer. Bidder must indicate that information by entering "DISCONTINUED" or "DUPLICATION" by that item on the appropriate attachment(s). All items marked "Discontinued" will be verified. Bids which do not meet the requirements specified in this Invitation to Bid will be considered non- responsive. Responsive bids meeting the mandatory requirements will be evaluated. [Emphasis in original]. Another specific condition included in the ITB is titled "Mandatory Requirement." The Mandatory Requirement condition provides the following: The us of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. The Mandatory Requirement condition also provides that "[m]aterial deviations can not be waived." A "material deviation" is defined as follows: A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the Invitation to Bid requirements, provides an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State. . . . Several bids were received in response to the ITB. The bids were opened on June 15, 1999. Eddie L. Cole, majority stockholder of Petitioner, E. L. Cole Photography, Inc. (hereinafter referred to as "Cole Photography"), attended the opening. Seven bids were determined to be responsive, including Cole Photography and Mardel Enterprises, Inc. (hereinafter referred to as Mardel"). Cole Photography and Mardel are minority business enterprises. Pursuant to the ITB, minority business enterprises were entitled to a ten percent price preference. Cole Photography's and Mardel's bids were, therefore, reduced by ten percent before determining the lowest bid on the ITB. Initially the Department made adjustments to all of the responsive bids based upon "discrepancies" between the items listed in the ITB by the Department and the products actually available. The bid tabulation on the ITB was posted by the Department between July 6 and July 9, 1999. Mardel was determined to be the lowest bidder after the ten percent minority business enterprise preference was applied. Cole Photography protested this determination. Following Cole Photography's protest, the Department recalculated the responses to the ITB. Items previously excluded by the Department in its tabulation were included in the recalculation. The inclusion of those items in the recalculation are not at issue in this proceeding. In addition to including the previously excluded items, however, the Department also excluded the double inclusion of the Duplicated Item. Mardel had bid a unit price of $106.03 per package for the estimated quantity of 470 pkg for item 3 on page 10 of the ITB. The total price bid by Mardel was $49,834.10. Cole Photography bid a unit price of $102.15 for item 3 on page 10. The total price bid by Cole Photography was $48,010.50. Mardel bid a unit price of $106.03 per box for the estimated quantity of 75 boxes for item 16 on page 12 of the ITB. The total price bid by Mardel was $7,952.25. Mardel failed to indicate that item 16 on page 12 of the ITB was a duplication as required by the specific conditions of the ITB. Cole marked item 16 on page 12 as "Duplication." In its recalculation of the bid submittals, the Department excluded the $7,952.25 bid for item 16 on page 12 of the ITB submitted by Mardel. No adjustment of Cole Photography's bid was necessary. Mardel's total bid before the reduction for the Duplicated Item was $349,448.75. Cole Photography's total bid was $343,063.40. After the reduction for the Duplicated Item, Mardel's bid was $341,496.50. After the reduction for the ten percent minority business enterprise preference, Mardel's bid was $310,362.21 and Cole Photography's bid was $311,929.11. The Department indicated its intent to award the contract on the ITB to Mardel. Cole Photography was third lowest bidder. Mardel's bid on the Duplicated Item has no impact on the ultimate amount of costs the Department may incur as a result of awarding a contract on the ITB, since Mardel bid the same unit price for Item 3 on page 10 and Item 16 on page 12. Therefore, the Department may purchase any amount of the item for the unit price bid by Mardel. If Cole Photography had been the lowest bidder, the Department would have been able to purchase any amount of the Duplicated Item for the unit price Cole Photography bid. Including Mardel's two bids on the Duplicated Item results in an arbitrarily inflated bid. The failure of all of the responsive bidders except Cole Photography to indicate that the Duplicated Item constituted a duplication on the ITB as required in the specific conditions was a "deviation" from the ITB's requirements. Even with this deviation, the responsive bids are still "in substantial accord with the Invitation to Bid requirements," and they do not provide "an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State." Therefore, the failure to indicate that the failure to note the Duplicated Item does not constitute a "material deviation" as defined in the ITB. Both parties have filed Motions for Costs and Charges in this case pursuant to Section 287.042(2)(c), Florida Statutes. Cole Photography has incurred costs, excluding attorney's fees, in the amount of $264.15. The Department has incurred costs, excluding attorney's fees, in the amount of $51.40.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Law Enforcement finding that E. L. Cole Photography, Inc., failed to prove that the decision of the Department finding that Mardel Enterprises, Inc., submitted the lowest responsive bid to the ITB was "clearly erroneous, contrary to competition, arbitrary, or capricious" and dismissing the bid protest of E. L. Photography, Inc. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 9th day of November, 1999. COPIES FURNISHED: Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 John P. Booth, Assistant General Counsel Karen Simmons, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302-1489 James T. Moore, Commissoner Florida Department of Law Enforcement Post Office box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether the School Board’s action in awarding the contract for the sale of declared surplus to Develyn M. Smith was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On October 17 and 24, 1996, respondent, Putnam County School Board (Board), published a notice in the Palatka Daily News soliciting bids on a five-acre parcel of surplus property in Putnam Hall, a small rural community in northwestern Putnam County. The notice provided that “(s)ealed bids should be submitted . . . by 1:00 p.m. on November 4, 1996,” and that the bids would be opened at 1:30 p.m. the same day. In response to that notice, petitioner, Positive Images Alternative Enrichment Group, Inc. (petitioner or PIAEG), and respondent, Develyn M. Smith (Smith), submitted offers of $10,000.00 and $3,500.00, respectively. On November 25, 1996, the Board awarded the contract to PIAEG, the highest bidder. When PIAEG failed to provide a binder and sign a contract for sale and purchase by the Board’s January 13, 1997 meeting, the Board rescinded its earlier action and awarded the contract to Smith, the next highest bidder. On January 24, 1997, petitioner filed its written protest of the Board’s action. The facts underpinning the Board’s action are set forth below. On November 4, 1996, the two bids were opened by assistant superintendent Anthony C. Thompson. On November 6, 1996, Thompson submitted a memorandum to the Board in which he recommended that PIAEG’s bid be accepted. This recommendation was formally approved by the Board at a meeting held on November 25, 1996. Whether notice of this intended award was posted is not of record. On November 25, 1996, or the Monday before Thanksgiving, the Board’s general counsel, Joe Pickens, telephoned PIAEG’s representative, Lawrence Hutcherson, and advised him that, as the successful bidder, PIAEG must give the Board a $1,000.00 binder and execute a contract to purchase the property. He was further told that after doing so, the Board would commence title work on the land. Hutcherson asked if he could delay providing a binder and signing the contract until after the holidays, or until the week of December 2. Pickens orally agreed to this request. Pickens heard nothing from Hutcherson until he received a copy of a letter to the Board’s superintendent dated December 23, 1996, in which PIAEG’s secretary, Jonathan Williams, asked that “any action on said property (be) withheld until our meeting with the Rural Development Agency in Ocala January 7, 1997.” The letter added that the “request is made to allow our organization to seek resources for the planned community facility.” The delay was sought after PIAEG learned of possible federal grant moneys available through the State, and decided to use that source of money for financing the acquisition rather than relying upon its own funds. Hutcherson made no inquiry with the superintendent or Pickens to determine if the extension of time had been granted. Rather, he just assumed that his request would be approved since he was unaware of any time constraints on purchasing the property. By the same token, neither Pickens nor the superintendent responded to the letter. Pickens, however, discussed the matter with a Board representative, and the two agreed an extension of time would be satisfactory since the next Board meeting was not until January 13, 1997, or after PIAEG’s meeting on January 7. While Pickens expected Hutcherson to contact him before the next meeting, he did not convey this advice to Hutcherson. At the January 7 meeting in Ocala, PIAEG learned that until rules were adopted by the Department of Community Affairs, no grant applications could even be considered. At that time, Hutcherson was led to believe that such rules would not be adopted before May 1997. At hearing, he stated that this time had subsequently been extended, and he is now unsure when the rules will be adopted. Hutcherson did not report this information to Pickens before the January 13 Board meeting because he says he needed several weeks to prepare an appropriate report. Also, until the afternoon of January 10, he was unaware of the meeting. Finally, he had received no response to his letter of December 23 requesting a delay, and he reasonably assumed that no action would be taken until after he filed his report. After receiving no advice, oral or written, from Hutcherson regarding PIAEG’s January 7 meeting in Ocala, Pickens recommended to the Board at its January 13 meeting that it rescind its earlier award of the contract to PIAEG and that Smith’s bid be accepted. The Board approved this recommendation. The Board acknowledges that it did not post notice of this intended action. On January 17, 1997, and without knowledge that its award had been rescinded, PIAEG’s secretary sent a letter to the Board’s superintendent asking that a further extension be granted. The letter explained that PIAEG planned “to have a pre- application (for grant moneys) ready within the next 45 days.” Shortly thereafter, Hutcherson learned of the Board’s action, and PIAEG filed its protest on January 24, 1997. After settlement negotiations failed, this proceeding was begun. Except for the notice pertaining to the date on which sealed bids had to be filed, there were no other specifications governing this bid solicitation. Thus, there was no written requirement that a binder had to be filed by a date certain, or that the successful bidder had a specified period of time in which to close on the property or risk loss of the contract. When PIAEG filed its sealed bid, it erroneously used the name “Positive Images Alternative Group, Inc.” instead of its correct name. After its bid was submitted, PIAEG sent a letter to the Board’s general counsel and superintendent on December 23, 1996, using its correct name. The Board has represented that this change was immaterial, did not affect the outcome of the case, and would not be a disqualifying factor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Putnam County School Board enter a final order rescinding its action taken on January 13, 1997, and awarding the contract to petitioner. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997. COPIES FURNISHED: Geri Melosh, Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Lawrence Hutcherson Post Office Box 2186 Palatka, Florida 32178-2186 Joe H. Pickens, Esquire 222 North Third Street Palatka, Florida 32177-3710 Develyn M. Smith 1116 Bellamy Road Melrose, Florida 32666
The Issue The issue is whether the talent agency license held by Respondent should be disciplined for exercising undue influence on an artist for financial gain, and failing to provide clients with copies of contracts which list the services to be provided and fees to be charged and which state that the agency is regulated by the Department.
Findings Of Fact Jane Daniels has been licensed as a talent agency in the State of Florida, doing business as T.J. Norris Co., Inc., and holds license TA-0000015. Ms. Daniels is married to Bill Daniels, a photographer. Their offices are in Fort Lauderdale. Each has a separate entrance, but the suite of offices connect internally. Terri Bjorklund took her infant son, Glenn, to the T.J. Norris agency in February, 1988, responding to one of the advertisements seeking babies and toddlers for advertising work during the Christmas season. Ms. Bjorklund showed Art Feldman, an employee of the T.J. Norris agency, two 8x10 photographs and a photo card bearing three smaller pictures of her son during her interview. Mr. Feldman told Ms. Bjorklund that the pictures of the baby "belong in the garbage," and made the baby "look like an amputee." Mr. Feldman told Ms. Bjorklund that she needed a professional photographic portfolio for her son to obtain work, and he suggested a photographer right in the building who was, in fact, Bill Daniels. Ms. Bjorklund paid $170 to the T.J. Norris agency; $30 was a registration, and $140 was a down payment on the photographic portfolio, which would cost $295. Ms. Bjorklund was told that the balance due on the portfolio could be paid from work the agency obtained for the baby. Ms. Bjorklund was not able to pay any more money for the photographs because her husband had been hurt in a motorcycle accident, was not able to work, and the family was on food stamps. She emphasized that if she could not "work off the balance" through work obtained for the baby, she did not want to pay the $140 that day. Based upon Ms. Daniels' assurances about the payment arrangement, Ms. Bjorklund had the photographs taken by Bill Daniels. When Ms. Bjorklund called the T.J. Norris agency on several occasions to see if there was work available for her son, she was told that no work would be found until Ms. Bjorklund paid off the balance of the portfolio in full. When Ms. Bjorklund stated that she intended to complain to the Department of Professional Regulation or to a local television station because their agreement was not being honored, she was given appointments to take the baby to castings. These were always cancelled, except for one, where the part required the child to speak; this was useless because the child was only 8 months old. The application filed with the T.J. Norris agency disclosed the child's age. Ms. Bjorklund ultimately took her son to other talent agencies, and obtained work for her son through them. In obtaining this work, Ms. Bjorklund used the card with the pictures Mr. Feldman had derided. Those photographs were adequate for use in obtaining bookings for a young child. Expensive photographic portfolios are not ordinarily done for young children because they change quickly as they grow. Ms. Bjorklund never received a copy of the contract she signed with the T.J. Norris agency when she paid the $30 registration fee at the agency. Jonathan Ferrara went to the talent agency on July 12, 1988. He submitted head shots and resumes in order to obtain modeling or acting work through the T.J. Norris Agency. Mr. Ferrara uses the stage name Mark Love. Mr. Ferrara was interviewed by Art Feldman, an employee of the T.J. Norris Agency. Mr. Ferrara never received a copy of the contract with the agency, although he had paid a $30 registration fee, and an additional $15 to make a master card, which is sent to movie companies for use in casting. Jodi Lewine went to the T.J. Norris Agency to obtain modeling or acting work on August 5, 1988. She had no prior experience. She was interviewed by Art Feldman, who told her she would have to have photographs taken before the agency could solicit work for her. Feldman suggested that the photographs be taken by the photographer whose studio was in the same building, the studio of Bill Daniels. Mr. Feldman never told Ms. Lewine that she could have photographs taken by another photographer, but there is no evidence that he required Ms. Lewine to have the work done by Mr. Daniels. (Tr. 43, 1. 16-19, and Tr. 49, 1. 9) Models do not ordinarily acquire portfolios of photographs until after they have worked on several jobs through collecting the photographs taken on those jobs. Ms. Lewine never received a copy of the contract which she signed with the T.J. Norris Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Professional Regulation finding T.J. Norris Co., Inc., to have violated Section 468.402(1)(t), on two occasions and Section 468.410(3), on three occasions, and imposing an administrative fine of $2,000. DONE and ENTERED this 27th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1990.
The Issue Whether the Department acted arbitrarily and capriciously in giving notice of its intended award of a contract for the purchase of optical character reading equipment to Scan Optics?
Findings Of Fact The Department is the state agency charged with the administration of Florida's unemployment compensation insurance program. The Department's Bureau of Claims and Benefits (hereinafter referred to as the "Bureau") is responsible for receiving claims for unemployment insurance benefits and for the disbursement of unemployment insurance payments. In processing and paying claims for unemployment insurance benefits, the Bureau must work with the Comptroller, who issues the payment checks. The Comptroller's office has been issuing checks on IBM punch cards. The Bureau has also been using IBM punch cards in processing unemployment insurance claims so that the punch cards could be collated with the IBM punch card checks issued by the Comptroller. In early 1984, the Bureau was informed that IBM card stock would no longer be printed. In early 1985, the Bureau was informed by the Comptroller's office that the Comptroller was going to begin to use paper warrants for the payment of benefits instead of IBM cards. As a result of this change, the Department is no longer able to use checks issued by the Comptroller to collate with its IBM punch cards. Because of the switch to paper warrants by the Comptroller, the Department began in 1985 to look at other technologies capable of efficiently working with paper warrants. The Bureau formed a committee to explore alternatives. That committee researched alternatives and visited other states to determine how other states were processing claims. The Department decided to purchase an optical character reader (hereinafter referred to as an OCR), for use in processing unemployment compensation claims. An OCR is a device which reads printed or handwritten characters. It scans a document, reads characters by comparing them to a mask or template and reads and records the data. The Department plans to use the OCR to read and record data from certifications for unemployment compensation insurance benefits. The data recorded will be transferred to the Department's mainframe IBM computer for use in processing by an automated benefits system. The Petitioner and Scan Optics are manufacturers of OCR equipment. Scan Optics has been manufacturing OCR equipment for 20 years. The Department requested a list of vendors from the Division of Purchasing and received a list of 167 potential vendors. On July 14, 1986, the Department issued a Request for Proposals (hereinafter referred to as the "RFP"), seeking competitive bids for the purchase by the Department of an OCR. All 167 potential vendors were notified of the RFP by the Department. Approximately 25 of the potential vendors requested a copy of the RFP. Only the Petitioner and Scan Optics submitted proposals in response to the RFP. A 6 member committee appointed by the Department prepared the RFP. Three members of the committee were employees of the Bureau and three members were employees of the Department's Bureau of Computer Data Systems. A request for proposal is a solicitation by an agency of offers from potential vendors to provide a needed commodity or service. It is different from a bid where the agency simply identifies the product it wishes to purchase and chooses the vendor offering the product at the lowest cost. The RFP set forth the Department's functional requirements and asked vendors to respond in any manner which they believed would meet those requirements. In the RFP, the Department stated the requirements which vendors were required to meet, evaluation criteria and the weight to be given to those criteria. It was also provided that responses would be verified by documentation and demonstration in a benchmark test. In the RFP, vendors were informed that if they disputed the reasonableness, necessity, or competitiveness of the RFP they must file a protest in accordance with Section 120.53(5), Florida Statutes. Paragraph 8 of the General Conditions. Vendors were also informed that any questions concerning the conditions and specifications of the RFP had to be submitted in writing to the Department no later than 10 days prior to the proposal opening and that "[n]o interpretation shall be considered binding unless provided in writing by the State of Florida in response to request in full compliance with this provision." Paragraph 5 of the General Conditions. Section 1.07 of the RFP instructed vendors to examine the RFP to determine if the requirements were clearly stated. Section 1.10 of the RFP provided that only written and signed vendor communications would be considered and that only written communications from the purchasing off ice would be considered authoritative. The Petitioner did not file a protest of the terms of the RFP pursuant to Section 120.53(5), Florida Statutes. Section 1.03 of the RFP provided for a vendors conference at which the contents of the RFP and any written inquiries from the vendors could be discussed. The Petitioner and Scan Optics submitted written questions to the Department. The vendors' conference was scheduled and conducted on July 30, 1986. Representatives of the Petitioner and Scan Optics attended the vendors' conference. The questions submitted by the Petitioner and Scan Optics were discussed. At the commencement of the vendors' conference, the Department's representative cautioned all present that statements made during the conference would not modify the RFP. This representation was heard and understood by the Petitioner's representative at the vendors' conference. Subsequent to the vendors' conference, the Department issued amendments to the RFP. The cover letter dated August 7, 1986, conveying the amendments to the Petitioner stated that any questions about the amendments had to be received in writing in the Office of Purchasing no later than 5:00 p.m., August 12, 1986. Draft samples of claims' certification forms and paper stock described in Section 3.01.18 of the RFP were also sent to the Petitioner and Scan Optics. The Petitioner did not submit any additional questions about the RFP or the amendments before 5:00 p.m., August 12, 1986. The Department proposed to accept Scan Optics' proposal and purchase the OCR from Scan Optics. The Petitioner brought this administrative action challenging the Department's proposed action. Chapter I of the RFP contains administrative and general information. Chapter II of the RFP contains a description of the Department's current system, a list of proposed OCR applications and the objective of the Department. Chapter III of the RFP sets out the technical requirements. Mandatory requirements and desirable requirements are provided. The terms "mandatory requirement" are defined in Section 1.17.ao of the RFP as follows: "Mandatory Requirement" shall be defined as a requirement the vendor must meet for the proposal to be considered responsive, failure to meet a mandatory requirement will cause the proposal to be rejected. The terms desirable requirement" are defined in Section 1.17.ak of the RFP as follows: "Desirable Requirement" shall be defined as a function, feature, or service the State considers necessary for optimal application flexibility, ease of system operation, or system reliability. Failure to meet a desirable requirement will result in a lower technical evaluation. The technical requirements set out the specifications which the Department had determined must (mandatory) or should (desirable) be met in order for an OCR to fulfill the Department's objectives. Chapter IV of the RFP provides the evaluation process the Department was to follow in determining which proposal to accept. The evaluation process was to include the awarding of points for compliance with the technical requirements. The RFP also included provisions designed to ensure that the representations of a vendor in a proposal would be fulfilled, including a benchmark test to verify certain representations of a vendor and acceptance testing after the equipment was purchased and installed. The general objective of the Department was provided in Section 2.04 of the RFP: The State wishes to procure an Optical Character Reading System with related soft- ware capable of meeting the requirements for the reading of UI benefit certifications and other UI applications that are feasible. The Optical Character Reading System will consist of a [sic] Optical Character Reader (OCR) and Correction System. The complete System will be bought from a single vendor. Section 1.17.ap of the RFP defines "objective" as: A statement describing generally the system to be procured. Any proposed system not meeting the objective will be rejected. Although Section 2.03.3 of the RFP provides that processing of quarterly wage reports is a major application, the RFP does not require that the proposed OCR equipment must be capable of this application. The only requirement is that the objective" be met. The reference to "other UI applications that are feasible" in the objective was intended to refer to future applications of the OCR which the Department only wanted to be aware of. There was no requirement that proposed OCR's be capable of other applications. The RFP made it clear that proposals would be based on the technical requirements of Chapter III of the RFP and would be evaluated pursuant to Chapter IV of the RFP. When these chapters and the "objective" are considered it is clear that the Department was proposing to purchase an OCR to perform the task of reading unemployment insurance claims forms and not wage reports. The responses to the RFP submitted by the Petitioner and Scan Optics were evaluated by the committee established by the Department to prepare the RFP. The committee determined whether the vendors met the mandatory requirements of the RFP and allocated points for mandatory and desirable requirements based upon the vendors' responses. The committee's evaluation consisted of 3 stages as required by the RFP. First, the committee evaluated and scored the vendors' technical responses. Each vendor was awarded points for their responses to the mandatory and desirable requirements as provided in the RFP. The committee fairly and reasonably applied the scoring system. Secondly, the committee evaluated and scored the vendors' cost responses as provided in the RFP. Finally, each vendor's scores were added. The vendor with the highest score was then given an opportunity to subject its proposed system to a benchmark test. The RFP provided that only the vendor with the highest points from the first 2 stages of the evaluation would be subjected to the benchmark test. The benchmark test was used by the Department to verify some of the statements in the highest scoring vendor's response, including some responses which the committee had some questions about during the evaluation. Based upon the committee's evaluation, Scan Optics was selected as the highest scoring vendor and its proposed system was subjected to the benchmark test. The benchmark test is provided for in Chapter X of the RFP. If Scan Optics' system had failed the benchmark test with regard to a mandatory requirement, its proposal would have been rejected. If it had failed to fulfill a desirable requirement, its response would have been rescored. The benchmark test was designed to give some assurances that a vendor's claims were correct. The test gave the committee confidence that the vendor was providing accurate information. Scan Optics' system successfully completed the benchmark test. During the first two stages of the evaluation, the committee looked at each vendor's total response, read all of the documentation submitted by the vendors and did all the research it could without actually having the system itself to evaluate. Not every response of the vendor was verified with absolute certainty. It was necessary for the Department to exercise judgment and discretion in determining whether responses were responsive to the RFP. Each response was evaluated as a whole and relevant information contained in one response was considered in evaluating other responses. Both vendors' responses were reviewed carefully. Both vendors provided responses which were not as thorough as the committee desired. The committee exercised its discretion in those instances and reviewed all documentation and the complete response to determine if sufficient information had been provided to conclude that a response was acceptable. Clarification or explanation of some responses was requested by the committee from both vendors. The manner in which mandatory responses were to be evaluated is provided in Section 1.06 of the RFP: The State has established certain requirements with respect to Request for Proposals to be submitted by vendors. The use of "shall", must" or "will" (except to indicate simple futurity) in this Request indicates a require- ment or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal requirements [sic] provides an advantage to one vendor over other vendors, has a potentially significant effect on the quantity or quality or items proposed, or on the cost to the State. Material deviations cannot be waived. Determining whether a deviation was material required the Department to use discretion. The RFP does not require rejection of a proposal if a desirable requirement was not met. Section 1.06 of the RFP provides the following with regard to desirable requirements: The words "should" or "may" in this Request for Proposal indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a proposal. In determining whether a mandatory requirement was met, the committee determined if a vendor's response indicated that the requirement could be met. If there was any question about the vendor's response, the committee then evaluated the response to determine if the response was sufficient to justify rejecting the entire proposal. This is a reasonable approach. The Department, through its committee, exercised its discretion fairly and equitably in reviewing each vendor's response. Scan Optics proposed a 442 system in response to the RFP. A 4542 system consists of two primary hardware component: a 4500 editing system and a 542 optical scanner. Section 3.01.1 of the RFP provides the following mandatory requirement The Vendor must supply documentation indicating the proposed System's capabilities to meet each mandatory and desirable item listed in this RFP. The documentation must refer to the section and item number it applies to in this RFP. There is no requirement in the RFP that the documentation provided by a vendor be listed. Scan Optics provided a great deal of documentation with its response. The Department reasonably concluded that the documentation provided met the requirement of Section 3.01.1 of the RFP. A list of most of Scan Optics' documentation was provided with its response. In addition to the documentation listed, Scan Optics provided a Model 542 Product Guide and a Model 533/542 Operator's Manual. Scan Optics' Models 530 and 540 optical scanners are very similar to their Model 542. The designation 540 refers to a family of optical scanners which includes the Model 542. Most of the information concerning the operation and capacity of the 540 also applies to the 542. Differences are due to greater capacity and speed of the 542 and internal differences. All of the documentation supplied by Scan Optics was considered by the committee in its evaluation and was determined to satisfy the requirement of Section 3.01.1 of the RFP. The committee talked with representatives of Scan Optics to determine whether documents pertaining to Model 530/540 supplied to the Department were relevant. The Department was informed that the Model 542 was a member of the same family of models and the information provided in the Model 530/540 documents was also applicable to the Model 542. Manufacturers of computer equipment have constantly evolving families of models with a number of similarities. The use of manuals and guides which apply to a family line is a common practice. The committee reasonably accepted the Model 530/540 documents as documentation supporting the Model 542 proposed. Section 3.01.10.f of the RFP initially required that vendors show how the Initial System could be upgraded to meet a number of requirements, including the " [a]bility to read 700 different fonts including handprint in a multifont mode." The Petitioner submitted a written question which was discussed at the vendors' conference concerning the use of the term "fonts." There are not 700 fonts in the English language. An OCR is capable of scanning written documents and reading and recording the data contained thereon. Each particular design or style of a1phabetic (A to Z, in upper and lower case) and numeric (0 to 9) characters typed or written is called a font. Each style, or font, is unique and different from other styles. Characters are recognized and read by an OCR by templates or masks. Templates or masks determine an OCR's ability to read a particular character of different fonts. To read all the characters of one font, 36 masks or templates are needed. A single mask or template can read the same character, such as the letter "A" in more than one font. The question raised by the Petitioner was discussed at the vendors' conference and resulted in a written amendment to the mandatory requirement of Section 3.01.10.f. Section 3. 01.l0.f of the RFP, as amended, required that the Initial System be upgradeable to include the " [a]bility to read 700 different fonts/masks/templates, plus alpha numeric hand print." The Department and the vendors realized that Section 3. 01.10.f of the RFP, as amended, required that the ability to read 700 templates or masks, and not 700 fonts, was what was required. The Petitioner did not submit any questions concerning the amendment to Section 3.01.10.f of the RFP. The Petitioner's representative at the vendors' conference indicated that he understood the amendment and that the amendment eliminated the confusion created by the original requirement concerning "700 fonts." No statements were made by representatives of the Department during the vendors' conference concerning the requirement of Section 3.O1.10.f of the RFP, as amended. A statement concerning proposing a "maximum capability machine" was directed only to the Petitioner. The Department was aware that the Petitioner's maximum capability machine with regard to templates or masks was a machine with 720 templates. Therefore, the Petitioner was told that if it bid its maximum capability machine it would meet the requirement of Section 3.01.10.f of the RFP, as amended. This discussion was directed only at the Petitioner and was in response to the Petitioner's question, submitted in writing, about the requirement of Section 3.01.10.f of the RFP before it was amended. Section 3.01.10 of the RFP contains 7 subparagraphs labeled "a" through "g". Scan Optics' response to Section 3.01.10 of the RFP contained only 5 subparagraphs labeled "a" through "e". The responses of Scan Optics did not correspond to the subparagraphs of Section 3.01.10 of the RFP. There was no requirement that they do so. One of the subparagraphs for which there was no labeled response from Scan Optics, Section 3.01.10.f of the RFP, pertains to upgrading the Initial System to read 700 templates. Scan Optics proposed a system which already contained 768 templates. There was therefore no requirement to explain how the system could be upgraded. The other subparagraph for which there was no labeled response from Scan Optics, Section 3.01.10.g of the RFP, pertains to upgrading the Initial System to include "necessary system CPU's and controllers." Scan Optics' response to Section 3.01.10 of the RFP, when considered with other responses and the documentation provided, indicated that the Initial System would meet this provision. The Department reasonably determined that the response of Scan Optics to Section 3.01.10 of the RFP adequately explained how its system could be upgraded. Section 3.01.13 of the RFP contains the following mandatory requirement: The OCR must capture and store data on a 9-Track, 1600 and/or 6250 BPI EBCDIC Tape compatible with the equipment in use at the Caldwell Data Center at the State's Central Office in Tallahassee. Each tape drive in the proposed system must be usable for both output and input operations. The requirement of Section 3.01.13 of the RFP was amended to add the following sentence: The drives in use in the Data Caldwell Center [sic] are IBM 3420 Dual Density (1600 6250 BPI) with odd parity. In its response Scan Optics quoted the requirement without the amendment and then provided the following answer: The Scan-Optics Tape Drive provided is an operator selectable 1600 or 6250 BPI EBCDIC drive compatible with IBM equipment including the equipment in use at the Caldwell Data Center, and is capable of output or input. Although Scan Optics did not quote the requirement with the amendment, the amendment was included elsewhere in its response and Scan Optics' representatives were aware of the amendment. Even though Scan Optics did not correctly quote the requirement as amended, its response indicates that Scan Optics' proposal meets the amended requirement. Scan Optics indicated that its system is compatible with the Caldwell Data Center's equipment and identified the drives which it uses. The failure to quote the amended requirement was merely an oversight on the part of Scan Optics. There is no requirement that the requirements of the RFP be properly quoted or quoted at all in a response. Section 3.01.15 of the RFP, as amended, provides the following mandatory requirement: The OCR Microfilm camera must provide an image reduction ratio within the range of 40:1 to 50:1, image reduction in duplex mode and provide at least two (2) blip sizes based on Kodak IMT specifications which can be selected under program control. The system must be capable of filming any blip sizes based on predefined conditions on a document by document basis. In its response Scan Optics identified the range of its image reduction ratios and indicated that it would provide the blip sizes required. Although Scan Optics' response can be interpreted to indicate something which Scan Optics will be able to do in the future, the Department reasonably accepted Scan Optics' response. The committee knew that technology for meeting the microfilm requirement existed and was in use in the industry. Based upon documentation provided by Scan Optics, the committee also knew that the reduction ratios could be provided by Scan Optics because its camera was under program control and was therefore adjustable. Because the camera was under program control, the committee knew that it could be adjusted to provide two blip sizes. The committee also knew that if Scan Optics was selected as the high scorer as a result of the first two phases of the evaluation its camera would be subjected to the benchmark test. In fact, Scan Optics' camera was subjected to the benchmark test and demonstrated that the requirements of Section 3.01.15 of the RFP could be met. Scan Optics properly responded Section 3.01.15 of the RFP and the Department reasonably accepted its response. Section 3.01.18 of the RFP provides the following mandatory requirement: The OCR must be capable of processing documents with a paper weight range from 20 lbs. to 110 lbs. A paper thickness of .0075 inch capability is required. Scan Optics' response to Section 3.01.18 of the RFP was as follows: Standard Scan-Optics specification of paper weight is from 20 lbs. to 100 lbs. However, Scan-Optics personnel will modify the transport vacuum pumps and perform the necessary pre- ventative maintenance routines to accomplish the additional 10 percent requirement at the higher paper range, as we have done in numerous other installations. Scan Optics' total response indicates that it can meet the requirement of Section 3.01.18 of the RFP. The Department reasonably accepted the response. The Department-knew that similar equipment was frequently modified to fit specific jobs, that Scan Optics had indicated that it had modified its equipment in "numerous other installations" and that Scan Optics had indicated that it would modify its transport system. The Department also knew that the ability to process 110 lb. paper would be benchmark tested. The vendors were provided with sample forms which were .0075 inch thick and 110 lb. weight. This was the actual paper used by the Comptroller. Scan Optics' ability to meet the requirement of Section 3.01.18 of the RFP was tested and demonstrated in the benchmark test. Section 3.01.43 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide four (4) manuals for application and program development." Section 3.01.44 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide three (3) sets of manuals for support of system operations. Scan Optics indicated that it would provide the manuals at the time the contract was awarded. There was no requirement that a vendor provide the manuals at the time a response was filed. Section 3.01.43 and Section 3.01.44 of the RFP only sought assurances that the manuals would be provided. Scan Optics' response to Section 3.01.43 and Section 3.01.44 of the RFP and the Department's acceptance of the response was reasonable. Prior to amendment, Section 3.03.2 of the RFP provided the following desirable requirement: The Vendor should be able to upgrade the OCR font recognition as the Vendor makes improve- ments in font recognition to improve OCR read rates. This upgrade should be installable by the State. Section 3.03.2 of the RF was renumbered as Section 3.02.2 and the last sentence was amended to provide: "This upgrade should be installable by the State or, if installed by the Vendor, at no additional cost to the State." Scan Optics' response quoted the requirement before the amendment. The response, however, indicated that the requirement, as amended, could be met and the amendment was included in another portion of the Scan Optics' response. The Department reasonably accepted the response of Scan Optics to Section 3.02.2 of the RFP. Section 3.02.3 of the RFP (originally numbered 3.03.3) includes a desirable requirement that vendors specify the projected number of desk weekly unemployment insurance claim certification documents a vendor's proposed system could process in one hour with no more than three operators -- one to operate the OCR and two to correct unrecognized characters. Section 3.02.3 of the RFP provides that the document to be processed and the rules for processing are described in Chapter x, Section 10.2 of the RFP. The vendor with the highest score was to be benchmark-tested pursuant to these rules to determine if the vendor's response was accurate. Chapter x, Section 10.2 of the RFP describes the data that would be included in the claim form, how the form would be completed, the weight of the paper and the styles or fonts which would be used. Section 3.02.3 of the RFP only requires that the number of documents processed be provided. Scan Optics' response to Section 3.02.3 of the RFP provided that "Scan-Optics throughput based upon your requirements above will be: 3,500 desk weekly UI claim certification forms in one hours [sic]." Scan Optics' response went on to repeat the criteria set out in the RFP and provided: "Therefore, because of the above variables, Scan-Optics throughput has been calculated using the following assumptions:" The response goes on to provide certain assumptions made by Scan Optics in calculating the number of documents it projected could be processed. The assumptions set out in Scan Optics' response do not expressly limit or condition its estimate of 3,500 documents per hour. The response was given with knowledge that the estimate would have to be proved to be accurate in the benchmark test. Scan Optics' response was based upon the use of a standard formula and was reduced from 4,800 to 3,500 in order to give a projection which could be met and accounted for loss of productivity due to jams, operator absence and other problems. The projection was tested by Scan Optics before the proposal was submitted to the Department. The Department accepted the projection of Scan Optics and awarded Scan Optics the maximum points available for the desirable requirement of Section 3.02.3 of the RFP, 280 points. The Department did not take into account the assumptions expressed by Scan Optics in its response. The evidence did not prove if the assumptions expressed by Scan Optics are inconsistent with the rules for processing which would be followed in the benchmark test. Scan Optics successfully demonstrated its ability to process 3,500 forms per hour in the benchmark test. The benchmark test did not incorporate the assumptions made by Scan Optics. The forms used in the test were completed by individuals who received less instructions than claimants and State employees who will actually complete the forms. Even the instructions given were not completely followed. The benchmark test provided an accurate test of Scan Optics' ability to process claims. The Department reasonably accepted Scan Optics response to Section 3.02.3 of the RFP. Section 1.14 of the RFP required vendors to provide five references where "similar or exact proposed equipment and Licensed Software is installed and operational." Section 4.05 of the RFP provided for the manner in which references were to be evaluated. Up to 10 points per reference could be awarded, up to a maximum of 50 points. Section 4.05.6 of the RFP defined "similar equipment and software" to mean equipment consisting of "an OCR with microfilm option that reads either numeric handprint or multifont." [Emphasis added]. The Petitioner and Scan Optics provided more than five references. All references were contacted. Five of the references provided by both vendors had similar equipment and software as defined by Section 4.05.6 of the RFP. Scan Optics' five satisfactory references were Newport News Ship Building, IRS Atlanta, Barnett Bank of Florida, State of Ohio Department of Taxation and State of Tennessee Department of Revenue. The Department reasonably concluded that the references provided by Scan Optics satisfied the requirement of Section 1.14 of the RFP. The Department did not evaluate Scan Optics' response in an arbitrary and capricious manner.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Formal Written Protest and Petition for Formal Administrative Proceeding filed by the Petitioner, Recognition Equipment, Inc., be dismissed. DONE AND ORDERED this 26th day of February, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4570 BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." THE PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 13. 2 RO 9 and 75-76. 3 Not supported by the weight of the evidence. 4 RO 25, 27 and 29. 5 Although this statement was made, see RO 81. 6 RO 34-35 and 60. 7 RO 45. 8 RO 34, 36 and 47. 9 RO 48. 10 Irrelevant. 11 RO 124 and 126. Although the first sentence is true, it is irrelevant. The second sentence is not supported by the weight of the evidence. The first sentence is accepted in RO 83. The rest of the proposed finding of fact is irrelevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. The first sentence is argument. The second sentence is irrelevant. If the Petitioner relied on oral state- ments such reliance was not reasonable. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although Mr. Stallworth did make the quoted statement, it does not expand the requirements specifically included in the RFP. Not supported by the weight of the evidence. The first two sentences are accepted in RO 49. The third and fourth sentences are not supported by the weight of the evidence. 21 RO 57. 22 Not supported by the weight of the evidence. THE DEPARTMENT'S PROPOSED FINDINGS OF FACT: 1 RO 1, 3 and 5. 2 RO 5-6 and 8. 3 RO 13 and 38. 4 RO 12 and 14-16. 5 RO 22-23. 6 RO 25. 7 RO 26-27. 8 RO 29. 9 RO 29-30. 10 RO 73-74. 11 RO 77-78. 12 RO 80. 13-15 RO 81. 16 RO 40-44. 17 RO 44. 18 RO 67-68. 19 RO 70. 20 RO 82-84. 21 RO 84. 22 RO 87-88 and 90. 23 RO 91. 24 RO 93-97. 25 RO 96. 26 RO 99-100. 27 RO 100 and 102. 28 RO 112-113. 29 RO 115-116. 30 RO 122. 31 RO 57. 32 RO 47-49. 33 RO 53. 34 RO 54-55. 35 Irrelevant. 36 RO 54. 37 RO 124 and 127. 38 RO 125. 39 RO 126. 40 RO 127. 41 RO 128. SCAN OPTICS' PROPOSED FINDINGS OF FACT: 1 RO 1. RO 8. RO 9. 4 RO 75-76. 5 RO 76. 6 Irrelevant. 7 RO 10. 8 RO 11 and 26. 9 RO 11. 10 RO 1-2. 11 Irrelevant. 12 RO 3. 13 Hereby accepted. 14 RO 4. 15 RO 5. 16 RO 6. 17 RO 7. 18 RO 8. 19 RO 13. 20 RO 17. 21 RO 18 and 57. 22 RO 19. 23 RO 20. 24 RO 14-16. 25 RO 21. 26 RO 26. 27 RO 27. 28-29 RO 28. 30 Hereby accepted. 31 RO 29. 32 RO 30. 33 RO 32. 34 RO 33. 35 RO 34 and 37. 36 RO 37. 37 RO 38. 38 RO 39. 39 RO 39. The second and third sentences are irrelevant. 40 RO 40. 41 RO 43. 42 RO 44. 43 RO 42 and 44. 44 The first sentence is not supported by the weight of the evidence. The second sentence is hereby accepted. 45 RO 45. 46 RO 56. 47 RO 57. 48 RO 58. 49 RO 59. 50 RO 60. 51 RO 61. 52 RO 62. 53 RO 52. 54 RO 53. 55 RO 54. 56 RO 63. Irrelevant. Hereby accepted. 59 RO 64. 60-64 Irrelevant. 65 RO 38, 47 and 49. 66 RO 47-49. 67 RO 49-51 and 55. 68 RO 65. 69 Hereby accepted. 70 RO 78. 71 RO 66-68 and 70. 72 Hereby accepted. 73 RO 69. 74 RO 70. 75 RO 71. 76 RO 72. 77 RO 78. 78 The first and last sentences are accepted in RO 78-79. The second sentence is not supported by the weight of the evidence. 79 RO 75. 80 RO 82-84. 81 RO 84. 82 RO 85. 83 RO 92. 84 RO 93. 85 RO 95. 86 RO 96. 87 RO 97. 88 RO 98. 89 RO 99-100. 90 RO 101. 91 RO 100. 92 RO 102. 93 RO 86. 94 RO 87. 95 RO 88-90. 96 RO 103. 97 RO 106. 98 RO 105. 99 RO 106. 100 RO 107. 101 RO 104. 102 RO 105. 103 RO 107. 104 RO 108-109. 105 RO 110. 106 RO 111. 107 RO 112-113. 108 RO 114. 109 RO 113. 110 RO 115. 111 RO 116-117. 112 RO 119. The last sentence is irrelevant. 113 RO 118. 114 RO 121-122 Cumulative. Hereby accepted. 117 RO 123. 118 RO 124. 119 RO 125. 120 RO 126. 121 RO 127. 122 RO 128. 123 RO 129. 124 RO 130. 125 Not a finding of fact. COPIES FURNISHED: Edwin F. Blanton, Esquire Post Office Box 12808 Tallahassee, Florida 32317 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth H. Hart, Jr., Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Leonard A. Carson, Esquire John D. C. Newton, II, Esquire Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32301 Thomas J. McHale, Esquire Gager, Henry & Narkis One Exchange Place Post Office Box 2480 Waterbury, Connecticut 06722
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
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 The issue in this case is whether the proposed amendments to existing Rule 61A-5.0105, Florida Administrative Code, constitute a valid exercise of delegated legislative authority.
Findings Of Fact The Division, on October 11, 2002, in Volume 28, No. 41 of the Florida Administrative Weekly noticed a proposed amendment to Rule 61A-5.0105, Florida Administrative Code, concerning the conduct of Section 561.19(2), Florida Statutes, in double random selection drawings for revoked pre-1981 quota alcoholic beverage licenses. The proposed amendment states, in the portion relevant to this challenge, as follows: The division will follow the below listed procedures when entry forms are accepted for issuance of new state liquor licenses authorized by Florida Law, when they become available by reason of an increase in the population of a county or city, or a county voting to permit the sale of intoxicating beverages when such sale had previously been prohibited, or by revocation of a license under 565.02(1)(a)-(f), inclusive issued by Special Act prior to 1981 quota:1 Respondent cited as specific authority for the rule its general rulemaking powers contained in Section 561.11, Florida Statutes. The laws implemented by the proposed amendment included, in relevant part, Sections 561.19 and 561.20, Florida Statutes. Section 561.19, Florida Statutes, is the statutory authority for granting or denying applications for all liquor licenses and quota liquor licenses. Section 561.19(2)(a), Florida Statutes, establishes the double random selection drawing process for quota liquor licenses. Section 561.19, Florida Statutes, states in relevant part: Upon the completion of the investigation of an application, the division shall approve or disapprove the application. If approved, the license shall be issued upon payment to the division of the license tax hereinafter provided. (2)(a) When beverage licenses become available by reason of an increase in the population of a county or by reason of a county permitting the sale of intoxicating beverages when such sale had been prohibited, the division, if there are more applicants than the number of available licenses, shall provide a method of double random selection by public drawing to determine which applicants shall be considered for issuance of licenses. The double random selection drawing method shall allow each applicant whose application is complete and does not disclose on its face any matter rendering the applicant ineligible an equal opportunity of obtaining an available license. After all applications are filed with the director, the director shall then determine by random selection drawing the order in which each applicant's name shall be matched with a number selected by random drawing, and that number shall determine the order in which the applicant will be considered for a license. (Emphasis supplied.) In general, quota liquor licenses are issued in a limited number based on the population of a county or the increase, if any, in the population of a county. The licenses can also be issued when a county initially changes from a county which does not permit the sale of intoxicating liquor to one that does permit the sale of intoxicating liquor. The quota license is the only liquor license which is numerically limited; all other types of liquor licenses are available without numerical limitation. Because quota licenses are numerically limited, applications for such licenses can exceed the number of available licenses. Prior to 1981, quota licenses were issued based on an application. The evidence did not reveal the method used by the Division or the Governor in awarding quota licenses to qualified applicants when the applications for such exceeded the number of available licenses. Clearly, such decisions were made since quota licenses were issued prior to 1981. The evidence did indicate that in 1981 the Governor did not wish to be involved in the process of determining which applicants received quota liquor licenses and developed legislation establishing a double random drawing process. The legislation eventually became Section 561.19(2)(a), Florida Statutes. At some point, the number of licenses which could be issued was reduced from one license per 2,500 residents in a county to one license per 7,500 residents in a county. See Section 561.20, Florida Statutes (2002). Moreover, the Beverage Law comprised of Chapters 561, 562, 563, 564, 565, 567 and 568, Florida Statutes, establishes that quota licenses exist as un-issued licenses at the time the statutory criteria by county vote or population are met. See Beverly v. Division of Beverages, 282 So. 2d 657 (Fla. 1st DCA 1973). Indeed, the Division has the duty to issue these licenses to qualified applicants once they become available for issuance. The effect of revocation of a license is to revoke the current licensee's privilege to use a certain license at a certain location. Revocation under the Beverage Law simply returns a license to the possession of Respondent which again has the duty to issue the license if the population of the county supports its re-issuance. See Section 561.20(3), Florida Statutes, and Beverly v. Division of Beverages, 282 So. 2d 657 (Fla. 1st DCA 1973). In general, the double random drawing process provides a method for notifying the public of the availability of quota licenses and a method for selecting applications for further investigation and possible award of a quota license when those licenses are available. There is currently no administrative rule which gives Respondent guidance on what procedure to follow with regard to the award of pre-1981 quota licenses that have come back into the possession of Respondent by reason of revocation. There is also no rule which governs the re-issuance of post-1981 revoked quota licenses. Historically, Respondent has re-issued these revoked pre-1981 and post-1981 quota licenses through the double random drawing process. The pre-1981 revoked quota licenses issued through the double random drawings were never issued in excess of the population limits; however, they were issued in excess of the population increase for the prior year, if the total population supported the number of licenses issued. Respondent's long-standing policy was not challenged until the recent multiple litigation on this issue involving Petitioner as outlined above. Petitioner has applied for approximately 57 previously- revoked quota licenses. There was no evidence whether these licenses were initially created based on an increase in county population.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is ORDERED that the Petition Challenging a Proposed Agency Rule challenging the proposed amendment to Rule 61A-5.0105, Florida Administrative Code, is granted. The proposed amendment is declared invalid. DONE AND ORDERED this 27th day of January, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of January, 2003.
