The Issue Whether the decision of Respondent, Seminole County School Board, not to include Petitioner, Cady Studios, LLC, in its award of a yearbook and photography services contract was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Seminole County, Florida. See § 1001.30, Fla. Stat. The School Board oversees 37 elementary schools, 12 middle schools, nine high schools, and seven special centers. The Seminole County School District includes over 67,000 students. The School Board is an authorized governmental entity allowed to contract for commodities or services using the competitive solicitation process set forth in section 287.057, Florida Statutes. See §§ 1010.04 and 1001.41(4), Fla. Stat. On July 18, 2017, the School Board published [Request for Proposal] #17180001P-LL, Yearbook and Photography Services (the “RFP”). Through the RFP, the School Board solicited qualified vendors to provide Photography Services to Seminole County Public Schools. The initial contract for the Photography Services runs for three years, with a possible extension of another two years. Prior to this RFP, the School Board had never used a request for proposal to solicit the Photography Services. Thirteen photography and yearbook vendors, including Cady Studios, responded to the RFP. Ultimately, as further explained below, the School Board determined to offer the top seven vendors a contract to provide the Photography Services. Cady Studios was ranked eighth. Consequently, Cady Studios was not selected under the RFP. Cady Studios is a family-owned portrait company based in Florida and has provided school portrait services since 1998. Cady Studios has partnered with over 50 schools in central Florida, and is an approved vendor in 35 Florida school districts. The School Board published the RFP, as well as an Addendum, on VendorLink and Demand Star websites. The School Board used these two on-line platforms to disseminate information regarding the solicitation to interested vendors. The School Board provided links to VendorLink and Demand Star on the district’s website. After the School Board posted the RFP on July 18, 2017, the School Board did not receive any protests to the terms, conditions, or specifications contained in the RFP.5/ Pertinent to this matter, Cady Studios never protested the RFP’s terms, conditions, or specifications, or the School Board’s decision to competitively solicit bids for the Photography Services under section 287.057. As stated in the RFP, the School Board conducted a pre- proposal conference on July 27, 2017. During this meeting, the School Board offered interested vendors the opportunity to ask questions about the RFP, as well as educate themselves about the process. Cady Studios did not attend the pre-proposal conference. On August 2, 2017, the School Board posted an Addendum to the RFP which requested specific pricing information for the Photography Services to be offered to high schools, middle schools, and/or elementary schools in Seminole County. Proposals for the Photography Services were due on August 15, 2017. Thirteen school photography and yearbook vendors, including Cady Studios, presented proposals in response to the RFP. RFP, Section V, directed each vendor to deliver “One (1) original, One (1) copy, and ten (10) electronic [USB] thumb drive version[s]” of its proposal to the School Board. To score the proposals, as set forth in RFP, Section IV, 1.A, the School Board formed an Evaluation Committee. The voting members consisted of an executive director from an elementary school, a middle school, and a high school (or their designees), as well as a local business advisory member. A non-voting School Board member was also included on the Evaluation Committee. The individuals selected to serve as the voting members of the Evaluation Committee included Dr. Trent Daniel (Principal, Lake Brantley High School); Byron Durias (Principal, Sanford Middle School); Tina Langdon (Principal, Sabal Point Elementary School); and Donald Miller (Business Advisory Member). Karen Almond served as the non-voting School Board member. After the School Board assembled the Evaluation Committee, the four voting members received training on the RFP’s scoring procedure. The training was conducted by Luangel Lowder, the School Board’s Purchasing Agent, on August 17, 2017. Ms. Lowder drafted and prepared the RFP. She also facilitated the RFP process. Ms. Lowder distributed training notes to each evaluator, which included guidance on how to score the proposals. In her written comments, Ms. Lowder wrote, “The Vendor Submittals are on Individual Jump Drives. I do have a hard copy if needed.” Ms. Lowder also provided “Adjectival Descriptor Rating Guidelines,” which the voting members were to use to score the proposals. Regarding a score of “0,” the guidelines explained: Unsatisfactory (0): Not responsive to question. “Unsatisfactory” is defined as a response not meeting the requirements without major revisions and proposes an unacceptable risk. “Unsatisfactory” demonstrates a misunderstanding of the requirements; the approach fails to meet performance or capability standard and contains major omissions and inadequate detail to assure the evaluator that the respondent has an understanding of the requirement. RFP, Sections IV and V, also listed the specific evaluation criteria, as well as the adjectival scoring system, the Evaluation Committee was to use to determine each vendor’s score. RFP, Section V, directed that “[e]ach response shall be organized and presented in the following sequence and will include the following at a minimum”: Tab 1-Respondent’s Profile and Submittal Letter (Non- Scored) Tab 2-Experience of Personnel (Weighted Value 25) Tab 3-Technical Approach Methodology (Weighted Value 30) Tab 4-References (Weighted Value 10) Tab 5-Fee Schedule (Weighted Value 35) Tab 6-Confidential Materials, Financial Statement and Litigation (Non-Scored) Tab 7-Exceptions to Draft Contract (Non-Scored) Tab 8-Addenda (Non-Scored) Tab 9-Required Documents (Non-Scored) The proposals were to be scored on a scale of 0 to 4 with a score of 0 as the least favorable, and a score of 4 as the most favorable in all sections. RFP, Section IV, 1.C, noted that a vendor’s response would receive a score of 0 if it was “Unsatisfactory: Not responsive to the question.” The RFP did not provide objective measures for the evaluators to score the proposals. Instead, the School Board relied on the experience and judgment of each evaluator as to what score to award in each category. The RFP notified vendors that, after the proposals were evaluated, the Evaluation Committee might conduct interviews or presentations from a shortlist of vendors. Per the terms of the RFP, the School Board required each winning vendor to enter into a Master Services Agreement. The Master Services Agreement was to ensure that each vendor for the Photography Services complied with, and operated under, the same terms and conditions. These standard terms and conditions included, but were not limited to, requirements for background checks, licenses, certificates of insurance, as well as the use of a common commission’s structure. Thereafter, the School Board intended for each district school to select a company from the list of approved vendors from whom they desired to obtain the Photography Services. After the 13 vendors presented their proposals on August 15, 2017, the School Board distributed a thumb [USB] drive from each vendor to each Evaluation Committee member. At that point, each committee member separately scored each proposal using the four weighted criteria listed in RFP, Section V: Experience of Personnel (25 points), Technical Approach Methodology (30 points), References (10 points), and Fee Schedule (35 points). On September 21, 2017, the Evaluation Committee convened a “short-list meeting” to discuss the scores each committee member awarded to each vendor. When Cady Studios’ proposal came up for review, two committee members, Dr. Trent Daniel and Byron Durias, announced that the USB drives they had been given for Cady Studios were blank. Dr. Daniel had tried her USB drive on two computers with similar results: the USB drive did not contain any files. Ms. Lowder then asked both members if they wished to review another USB drive or a paper copy of Cady Studios’ presentation so that they could score its proposal. Dr. Daniel declined. On her score sheet for Cady Studios, Dr. Daniel wrote before the short-list meeting, “could not read USB - empty.” During the discussion between the other evaluators, Dr. Daniel added: “notes, experience limited, reference from school, senior package high, presentation of bid, partnership w/ Herff Jones.” At the end of the discourse, because she had no proposal to score, Dr. Daniel disclosed to the Evaluation Committee that she awarded Cady Studios a score of “0” in every category. Mr. Durias, however, was willing to evaluate Cady Studios during the short-list meeting. Therefore, Ms. Lowder provided him another USB drive that did contain Cady Studios’ proposal. After his review, Mr. Durias awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 1 – References, and 2 – Fee Schedule. Each USB drive that Tina Langdon and Donald Miller received for Cady Studios contained its proposal, which they scored. Ms. Langdon awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 3 – Fee Schedule. Mr. Miller awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 2 – Fee Schedule. At the final hearing, Dr. Daniel explained that she passed on the opportunity to rescore Cady Studios’ proposal because, in her mind, a blank response (or USB drive) equated to a nonresponsive proposal. In other words, she scored what she had been given. Cady Studios’ proposal was “unsatisfactory” because it contained no response to the questions. Dr. Daniel further commented that Cady Studios’ failure to ensure that its proposal was properly copied onto all of its USB drives was irresponsible and unprofessional. This carelessness gave Dr. Daniel apprehension about the quality of service Cady Studios would provide if it could not follow the RFP’s explicit directions. Following the discussion and scoring of the vendors’ proposals, the Evaluation Committee members ranked all 13 vendors by overall total weighted scores. The Evaluation Committee’s final list of vendors and their scores read as follows: Grad Images: 1335 Life Touch: 1290 Leonard’s: 1272.5 Dean Stewart: 1140 Strawbridge: 1095 Josten’s: 1030 Walsworth: 1010 Cady Studios: 720 Barksdale: 715 Nation Wide: 710 Monden Studios: 705 Herff Jones: 670 Ritoba: 585 As shown above, Cady Studios received the eighth highest score. The Evaluation Committee then discussed which vendors it should invite back for informal interviews. After a brief deliberation, the Evaluation Committee reached a consensus that it should extend an interview to the top seven vendors on the scoring list. Dr. Daniel and Ms. Lowder explained that this division was chosen because of the “natural break” in the scores between the seventh ranked vendor (Walsworth) and the eighth ranked vendor (Cady Studios). Ms. Lowder relayed that the relatively large scoring differential between Walsworth (1010) and Cady Studios (720) (nearly 300 points) appeared to separate the top vendors from the others. Therefore, to narrow down the list of vendors to those most qualified to provide the Photography Services, the Evaluation Committee chose this gap as the dividing line. Dr. Daniel relayed that she had previously used this “natural break” scoring technique in cheerleading and dance competitions. Ms. Lowder testified that the RFP did not establish an exact number of vendors the School Board should select to provide the Photography Services. Neither did the RFP state how the vendors were to be condensed, if at all. The Evaluation Committee, however, felt that the number of approved vendors should be limited. A truncated list of vendors would provide a more manageable group for the School Board to oversee to ensure that each vendor offered a similar pricing structure and consistent services. This action would also make it easier for individual schools to select the vendor with which they desired to work. As a result of the Evaluation Committee’s “natural break” methodology, Cady Studios was not grouped with the winning vendors for the Photography Services. As a non-selected vendor, Cady Studios was not authorized to offer Photography Services to the district schools for the length of the RFP contract period (3 to 5 years). Cheryl Olsen serves as the School Board’s Director of Purchasing and Distribution. In this role, she supervised the procurement activities. After the Evaluation Committee’s short- list meeting, Ms. Olsen prepared a “Short List Letter” for the top seven vendors. The letter notified the vendors of their ranking on the short list and invited them back for informal interviews with the Evaluation Committee. On September 22, 2017, Ms. Lowder forwarded Ms. Olsen’s letter to the seven short-listed vendors. The interviews were scheduled for September 28, 2017. On September 28, 2017, the Evaluation Committee met with each of the seven short-listed vendors. Following the interviews, the Evaluation Committee decided that the School Board should offer the Photography Services to all seven short- listed vendors. That afternoon, Ms. Olsen drafted a Notice of Intended Decision announcing the intent to award the RFP to the top seven vendors. Ms. Olsen posted the Notice of Intended Decision on-line through both VendorLink and Demand Star. The Notice of Intended Decision stated: The Purchasing and Distribution Services Department hereby notifies all firms of an intended decision regarding the award of the [RFP] as outlined below or attached. The firms on the attached list will be recommended to the School Board on October 17, 2017 with final contracts to be presented at a future meeting. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes.[6/] Attached to the Notice of Intended Decision was the list of the seven vendors who the Evaluation Committee intended to recommend to the School Board for award of the RFP. Cady Studios was not included on the list. On October 10, 2017, the School Board formally approved an award of the Photography Services to the seven vendors identified in the Notice of Intended Decision. On November 7, 2017, the School Board entered into a Master Services Agreement with each of the seven winning vendors for the Photography Services. The initial term of the Master Services Agreements runs from November 8, 2017, through November 7, 2020. Jimmy Smith works as the Market Vice President for Cady Studios. In his role, Mr. Smith oversees all of Cady Studios’ photography services in Florida. Mr. Smith prepared Cady Studios’ proposal for the RFP. Mr. Smith explained that he is familiar with the competitive solicitation process. He has previously submitted proposals on behalf of Cady Studios for school photography services in Pinellas, Hillsborough, and Brevard Counties. In a typical school portrait arrangement, the parents/students directly pay the studio for the photography services. The studio then pays a commission back to the school. Prior to the RFP, Cady Studios was an approved vendor for the School Board. Cady Studios had worked with approximately four schools in the Seminole County School District. Mr. Smith was also familiar with VendorLink and Demand Star, the on-line platforms the School Board used to publish information regarding the RFP. Mr. Smith learned about the RFP after the School Board had already posted notice of the solicitation on July 18, 2017. However, by August 9, 2017, Mr. Smith had registered Cady Studios with VendorLink, and began receiving the notifications regarding the RFP. On Sunday, September 24, 2017, Mr. Smith found out about the Evaluation Committee’s short-list from another vendor. Mr. Smith then accessed the VendorLink website and spotted the Evaluation Committee’s invitation to the seven top vendors to return for informal interviews. When he discovered that Cady Studios was not included on the list, he concluded that Cady Studios would not be awarded the Photography Services contract. Mr. Smith promptly wrote an e-mail to Ms. Lowder. He asked her for any information as to why Cady Studios did not make the Evaluation Committee’s shortlist. Ms. Lowder received Mr. Smith’s e-mail the following morning on Monday, September 25, 2017. She replied to Mr. Smith both through an e-mail, as well as a phone call. During the phone call, Ms. Lowder offered to meet with Mr. Smith for a “debriefing” to review the Evaluation Committee’s decision. Ms. Lowder did not offer any information as to why Cady Studios was not included with the short-listed vendors. Ms. Lowder and Mr. Smith scheduled the debriefing meeting for Thursday, October 5, 2017. In the meantime, Mr. Smith received the School Board’s Notice of Intended Decision on September 28, 2017. He did not contact Ms. Lowder to reschedule the debriefing meeting. On October 5, 2017, Mr. Smith met with Ms. Lowder and Ms. Olson for the debriefing meeting. They reviewed the results of the Evaluation Committee’s short-list meeting, as well as each evaluator’s scores. During this meeting, Mr. Smith first discovered that one evaluator (Dr. Daniel) scored Cady Studios’ proposal with a “0” in every category. Mr. Smith further learned that Cady Studios received this score because the USB drive Dr. Daniel had been given was blank. At the final hearing, Mr. Smith adamantly declared that all 10 USB drives that he produced for the School Board contained Cady Studios’ proposal. He had no idea why two of the drives were blank when opened by Dr. Daniel and Mr. Durias. Mr. Smith also pointed out (correctly) that the RFP contained no provisions regarding what an evaluator was supposed to do with a blank USB drive. The RFP certainly did not direct the evaluator to score the proposal with all zeros. In his communications with Ms. Lowder, Mr. Smith never indicated that Cady Studios intended to protest the School Board’s ranking of vendors, or challenge the School Board’s decision in any other manner. However, on October 12, 2017, legal counsel for Cady Studios, Jeff Childers (Cady Studios’ counsel in this administrative matter), wrote to Ms. Olsen questioning the results of the RFP. Mr. Childers referenced the fact that one evaluator failed “to assign any points in any category to Cady.” Mr. Childers concluded by requesting that the School Board consider resolving this issue informally by allowing Cady Studios “to join the other seven authorized proposers” to provide Photography Services to district schools. On October 16, 2017, Ms. Olsen responded to Mr. Childers in a letter saying: The Notice of Intent to Award this solicitation was posted on September 28, 2017 at 2:24 p.m. In accordance with School Board Policy 7.71, Resolution of Bid Protests, “Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation.” Ms. Olsen then noted that, as of the date of her letter, Cady Studios had not filed a written notice of protest with the Office of the Superintendent or Clerk of the School Board. At the final hearing, Ms. Olsen (as well as Ms. Lowder) explained that, because the School Board posted its Notice of Intended Decision on Thursday, September 28, 2017, the 72-hour deadline to file a protest fell on Tuesday, October 3, 2017. (Saturday, September 30, 2017, and Sunday, October 1, 2017, are excluded in the computation of the 72-hour time period. See § 120.57(3)(b), Fla. Stat.) The fact that Mr. Smith’s debriefing meeting occurred two days after the 72-hour period had elapsed did not change the protest calculation. As described above, the School Board’s Notice of Intended Decision specifically stated, in pertinent part: Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes. Similarly, RFP, General Purchasing Terms and Condition, Paragraph 10, entitled, RFP TABULATIONS, RECOMMENDATIONS, AND PROTEST, addressed the possibility of a bid protest and stated: Failure to file a protest within the time prescribed in Section 120.57(3) Florida Statutes will constitute a waiver of proceedings under Chapter 120, Florida Statutes and School Board Rules.[7/] Paragraph 10 also referenced School Board Policy 7.71, Resolution of RFP Protest, and included a link to the School Board’s policy webpage where the Policy 7.71 could be accessed. Policy 7.71, Section V, states: Notice of Protest - Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation. In the event notice of intent to award a bid is issued by certified mail or express delivery service return receipt requested, the notice of protest must be filed on or before 4:30 p.m. on the third day following the date of receipt of the notice. In computing the deadline for filing, Saturdays, Sundays, and legal holidays observed by the School Board shall be excluded. Despite Ms. Olsen’s letter, as well as the language regarding protests in the RFP and the Notice of Intended Decision, Cady Studios formally filed a Notice of Protest with the School Board on November 9, 2017. At the final hearing, Mr. Smith acknowledged that 72 hours following the Notice of Intended Decision (not including Saturday and Sunday) fell on October 3, 2017. Therefore, to explain the delay in submitting Cady Studios’ Notice of Protest, Mr. Smith testified that he did not become aware of the material deficiencies in the Evaluation Committee’s review of Cady Studios’ proposal until he met with Ms. Lowder on October 5, 2017. Mr. Smith further admitted that he was not fully aware that Cady Studios only had 72 hours in which to protest the Notice of Intended Decision. Instead, he relied on Ms. Lowder to explain the RFP process, as well as the basis for the Evaluation Committee’s selection of the winning vendors. Consequently, Mr. Smith asserted that Cady Studios “was misled or lulled into inaction by” the School Board’s (Ms. Lowder’s) action of not scheduling a debriefing meeting until two days after the 72-hour protest window had closed. Mr. Smith maintained that if he had been informed of the deadline, Cady Studios would have filed immediately. Mr. Smith conceded that he was familiar with the protest language contained in the RFP’s General Purchasing Terms and Conditions, and was generally aware that the RFP referred to section 120.57(3). Mr. Smith further disclosed that he had read RFP, Paragraph 10, which identified Policy 7.71. However, he did not click the link to actually read the policy. Mr. Smith estimated that, by not making the School Board’s list of approved vendors for the Photography Services, it will lose approximately $2,000,000 worth of business and opportunity costs every year over the life of the contract. At the final hearing, Ms. Lowder responded to Mr. Smith’s testimony by pointing out that, even if Dr. Daniel had awarded Cady Studios with a “1” in each category, Cady Studios’ score would only have increased to 820. As the next lowest score to Cady Studios was 1010, Cady Studios’ adjusted score would still have fallen significantly below the top seven vendors. Continuing to conjecture, Ms. Lowder commented that if Dr. Daniel had given Cady Studios scores similar to the lowest score awarded by the other committee members, Cady Studios’ score would have equaled 935. This score is still below the “natural break” threshold of 1010. On cross examination, however, Ms. Lowder agreed that if Dr. Daniel awarded Cady Studios scores similar to the highest score awarded by the other committee members, Cady Studios would have received a score of 990--much closer to, but still below, the “natural break.” Ms. Lowder and Ms. Olsen also remarked that November 9, 2017, the date Cady Studios eventually filed its Notice of Protest, was 27 business days after the deadline to file a bid protest (and 25 business days after Mr. Smith learned the Evaluation Committee’s scores at the debriefing meeting). Cady Studios’ Notice of Protest was also submitted after the School Board had entered into a Master Service Agreement with each of the seven winning vendors. As discussed in detail below, the evidence presented at the final hearing establishes that Cady Studios failed to timely file its notice of protest within 72 hours after the School Board posted its Notice of Intended Decision. Further, Cady Studios did not prove that it may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Cady Studios’ challenge of the School Board’s intended award of the Photography Services must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board enter a final order dismissing Cady Studios’ protest as untimely filed. DONE AND ENTERED this 23rd day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2019.
The Issue The issue is whether Respondent is an "employer" as defined by Sections 760.02(7), Florida Statutes (2000). (All references to statutes are to Florida Statutes (2000) unless otherwise stated.)
Findings Of Fact Section 760.02(7) defines an "employer" as any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year. The current year, in this case, is the calendar year 2000, and the preceding year is the calendar year for 1999. Petitioner presented no evidence of the number of employees employed by Respondent for the current and preceding years at issue in this case. Petitioner submitted several documents and called two witnesses, including herself. None of the evidence which was submitted by the Petitioner identified the number or names of employees employed by Respondent during the calendar weeks at issue. Petitioner argued during the hearing that several companies are related entities either as sibling companies with a common parent or as members of an affiliated group. However, Petitioner failed to submit any evidence of their relationship by stock ownership or common operating control that may have demonstrated their status as related entities. Moreover, Petitioner failed to show the number and identity of the employees of those entities was such that the alleged related group of entities satisfied the statutory definition of an employer. Petitioner called one witness beside herself (Dawson). Dawson was a subcontractor for Respondent and not an employee. Assuming arguendo that Dawson was Respondent's "employee" for the year 2000, it does not affect the outcome of this case. Respondent's records and testimonial evidence show that Respondent would only have had 15 or more employees for seven weeks during the 2000 calendar year. Those weeks are the weeks of September 4, 11, 18, 25, 2000; and October 2, 9, and 16, 2000. Even with the hypothetical addition of Dawson as an employee, Respondent would still be 13 weeks short of satisfying the statutory definition of an employer in Section 760.02(7). Dawson suggested in his testimony that other individuals may have been present at Respondent's place of business during the period in which he performed services for Respondent. However, no testimony or evidence showed the precise weeks those individuals were supposedly working on behalf of Respondent or identified all of those individuals. Petitioner's testimony consisted of her blanket statement that Respondent had 15 or more employees during the 2000 calendar year. Petitioner did not identify the employees, did not identify the weeks such employees worked for Respondent, and did not show that the employees worked each calendar day for the 20 weeks mandated by statute. Petitioner's first day of employment was May 4, 2000, and her last day of employment was on October 20, 2000. Petitioner was not present in the workplace for a significant portion of the 2000 calendar year and is not competent to testify of her own knowledge regarding the number and identity of employees during the weeks Petitioner was not employed by Respondent. Petitioner referred to two other individuals in the course of the hearing as employees of Respondent. They were Mr. Reid Jackson (Jackson) and Mr. Barry Downey (Downey). Jackson began performing subcontracted services for Respondent in August of 2000. He was not an employee of Respondent and was not on Respondent's payroll. He was a subcontractor. Respondent made payments to Jackson & Escher, Inc., for the services provided by Jackson. Assuming arguendo that Jackson was an employee during the period in which he performed services for Respondent, the hypothetical addition of both Jackson and Dawson would not define Respondent as an employer in Section 760.02(7). The hypothetical addition of Jackson and Dawson would mean that Respondent maintained 15 or more employees for only 11 weeks during the calendar year of 2000. Those weeks would have been August 7, 14, 21, 28; September 4, 11, 18, 25; and October 2, 9, and 16. Petitioner identified Downey as a Director of Respondent but did not suggest the dates during which Downey served in that capacity. Dawson "think[s]" that Downey is a partner and general counsel for Respondent but cannot identify the dates that Downey purportedly acted in either capacity. Dawson also identified Downey as an "officer" and "owner" of Respondent. Dawson did not identify the purported office held by Downey, nor did he identify any dates on which Downey held a position of employment with Respondent. Respondent did not pay any salary or wages to Downey for the calendar years 1999 and 2000. Even if Downey were a director during the relevant period in this case, Downey was not an employee for 1999 or 2000 for purposes of Section 760.02(7). Respondent employed a maximum of five individuals during the 1999 calendar year. Respondent's evidence regarding its number of employees during 1999 was uncontroverted by Petitioner. Respondent did not employ 15 or more employees for 20 weeks during the 2000 calendar year. The week of October 16, 2000, was the single week in which Respondent employed 15 individuals for each working day of a calendar week. Respondent showed: the name of each employee employed by Respondent for each and every workweek for the 2000 calendar year; the weeks in which these employees worked for Respondent; and Respondent's total number of employees employed for each working day for each calendar week of 2000.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent is not an employer, within the meaning of Section 760.02(7), and dismissing the Petition for Relief/Charge of Discrimination for lack of jurisdiction. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Douglas W. Desmarais, Esquire Smith & Downey, P.A. One West Pennsylvania Avenue Suite 950 Baltimore, Maryland 21204 Wajiha Khan 640 Emerson Drive, Northeast Palm Bay, Florida 32907 Robert D. Moses, Esquire Wiederhold, Moses & Rubin 560 Village Boulevard Brandywine Centre II, Suite 240 West Palm Beach, Florida 33409 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003.
The Issue Whether Respondent is guilty of gross immorality or an act of moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes; Whether Respondent's conduct constitutes a violation of the Principles of Professional Conduct for the Education Profession in violation of Section 1012.795(1)(i), Florida Statutes; Whether Respondent used institutional privileges for personal gain or advantage in violation of Florida Administrative Code Rule 6B-1.006(4)(c); and If issues (1) through (3), or any of them, are determined against Respondent, what is the appropriate discipline, pursuant to Sections 1012.795(1) and 1012.796(7), Florida Statutes.
Findings Of Fact Respondent holds Florida Educator's Certificate 731624, covering the area of Social Science. His certificate was valid at all times material to this cause. It will remain valid through June 30, 2006. At all times material, Respondent was employed as a teacher at Lincoln High School in the Leon County School District. Respondent worked for the Leon County School District for approximately 11 years. During that period, he was never disciplined by the District, and he never received a poor performance evaluation. Respondent's teaching certificate has never been disciplined by the Department of Education. During the whole of Respondent's tenure at Lincoln High School, Respondent was a respected, popular, and effective educator. His competency as an educator is not at issue in this proceeding. While employed at Lincoln High School, Respondent was the communications technology teacher, junior class sponsor, and sponsor of the photography club. As the communications technology teacher, he taught his students about sending and receiving information, paper making, printing documents, print making, radio, television, photography, videography, and computer-aided graphics. Over the years, Respondent repeatedly volunteered to take pictures for school organizations, individual students, former students, and faculty and staff at Lincoln High School. Many of these photographs, including those taken of school sponsored events, were not part of his classroom responsibilities. Also, Respondent and the photography club provided free photography services to anyone who asked for them. Respondent and the photography club supplied free black and white film for such photo shoots and developed the film. Color film was not provided by the club. If a subject wanted to be photographed in color, the subject had to provide the color film and take it elsewhere to be developed. The avowed purpose of these photo shoots was practice for the photography class and club and sometimes to raise money for photographic supplies for school and club projects. Many of the requests by former students were for wedding announcement photographs. One former student utilized these free services a few times for promotional photographs of his band. Another former student was pursuing a modeling career and requested a portfolio of photographs of herself. Over the years, Respondent never attempted to hide these free photography services from the school administration. Respondent did not seek permission from the school administration on a case-by-case basis to take any of these photographs himself because he believed that he was both permitted and encouraged by the school administration to provide these services. It is probable that the administration and faculty knew of some, but not necessarily all, of the photographic services being provided. For instance, sports and teachers' photographs discussed in the teachers' lounge were generally known, as were photographs done for school publications, but Lincoln High School's principal is credible in that she did not know Respondent was taking photographs for non- school-related projects, or of teachers or former students without any educational component. (See Findings of Fact 24- 25.) As a result, Respondent was never cautioned or disciplined for his use of his classroom and school equipment after hours for non-school-related purposes. During the 2002-2003 school year, Lincoln High School's Spring Break took place during the week of March 24-28, 2003. On March 27, 2003, Respondent, whose date of birth is January 30, 1962, and a young woman, whose date of birth is October 3, 1983, used the Lincoln High School facilities and equipment for the purposes of a photo shoot. All equipment used was Lincoln High School property, except for the film, which was supplied by the Lincoln High School photography club. The young woman is a former student of Respondent. She graduated from Lincoln High School in 2002. At no time material, was she a minor, a student in the Leon County School District, a student at Lincoln High School, or a student of Respondent. While she had been a student at Lincoln High School, the young woman had taken Respondent's class in the same room as they used for the photo shoot during the 2002-2003 Spring Break. She had also been a member of the photography club while she had been a student and had become friends with Respondent. After graduation, she frequently returned to visit Respondent during class hours. Both the young woman and Respondent considered her visits platonic. Respondent never solicited these visits. The young woman visited Respondent at Lincoln High School in December 2002. During this visit, she asked Respondent to help her with a photo shoot that she and her girlfriend had come up with, involving human form-type photographs. Respondent agreed to take the photographs, but a date was not set. Human form photographs are still-life pictures of people that accentuate the form or shape of the human body with intense backlighting. They can be, but are not necessarily, nude or pornographic photographs. Some human form photographs are also taken in the Leon County School District at Lively Vocational Technical School. Respondent had previously taken human form pictures of both male and female students at Lincoln High School, including photographs of a football player that accentuated the shape of his muscular bare back from the waist up. At the time of the March 27, 2003, photo shoot, Respondent believed that it was "perfectly fine" to have an adult, non-student, male or female posing half-naked on the campus of a public high school. After her December 2002 visit, Respondent made no attempt to contact the young woman regarding her proposed photo shoot. She, however, telephoned Respondent, sent him an e-mail, and stopped by the high school in March 2003, in an attempt to set up the photo shoot. The photo shoot was eventually scheduled for March 27, 2003, during Spring Break. No compensation for either Respondent or the former student was discussed or contemplated. The Lincoln High School administration worked during 2003 Spring Break. Teachers were not required to work during Spring Break. However, it was not unusual for teachers to come onto campus during Spring Break. Prior to Spring Break, Respondent informed Lincoln High School's principal and an assistant principal that he would be on campus to use the portrait studio and photo lab during Spring Break, and they made arrangements so that he could get into the school through his password to the security system on March 27, 2003. Respondent did not volunteer to either of them that he would have anyone with him on campus on March 27, 2003, let alone that nude or semi-nude photographs of a former student would be on his agenda that day. Further, according to the principal's credible testimony, Lincoln High School's guidelines and those of the Leon County School Board require that Respondent request the principal's permission before conducting a photo shoot outside regular school hours; that using school facilities and equipment for a photo shoot during Spring Break would have been considered a "special purpose" not affiliated with the kind of school work for which teachers normally would be on campus at that time; and that Respondent never requested permission to utilize the school's facilities or equipment for the special purpose of a photo shoot during the 2003 Spring Break. The principal further testified credibly that she was not aware that Respondent was holding photo sessions not within classroom instruction, and that if she had known such shoots were taking place, she would have instructed him to stop. (See Finding of Fact 12.) None of the rules or policies concerning "special purposes" mentioned by the principal were introduced in evidence or cited by the parties. On the morning of March 27, 2003, Respondent informed his wife, for family scheduling purposes, that he was going to a short photo shoot with his former student. The female former student had selected several prospective poses from a website of "human form" photographs recommended by Respondent. She brought with her, to the photo shoot, a number of different garments to change into, and made several changes privately in a dressing room without observation or interference from Respondent during the course of the hour and a half photo shoot. The photo shoot began with the young woman fully clothed and being photographed by the Respondent. The shoot then progressed for about an hour to a point where, at the Respondent's suggestion, the young woman was topless, wearing only a street-length skirt and a scarf around her neck which draped, like a halter, across her breasts. Up to that point, the young woman gave Respondent no indication, either verbally or non-verbally, that she was uncomfortable with the photo shoot or with Respondent's presence. The young woman was lying on the floor while posing for a photograph. Respondent approached her, knelt behind her head, and arranged her hair for the next photograph. Respondent then arranged the scarf covering her breasts. While arranging the scarf, Respondent intentionally touched her nipple through the scarf. The touching lasted only a few seconds. The young woman jerked her arm to remove Respondent's hand and yelled at him, "What are you doing? Behave!" Respondent immediately got up and apologized. At that point, the young woman was shocked, scared, and confused, but she continued with the photo shoot without confronting Respondent with her reaction. Before the session ended, 20-30 minutes later, Respondent took more photos of the young woman completely nude from the waist up, but Respondent made no further attempts to touch her. Notably, the photographs were not offered at hearing, but the description by both protagonists was significantly similar. The record is silent as to what became of all of the exposed film. The young woman then changed into street clothes. As she was leaving, Respondent attempted to apologize again, but she interrupted him and said, "You're only human." Apparently, the young woman was not concerned about the nude and semi-nude photos, but, contrary to her closing remark to Respondent, she was emotionally distressed by his having touched her nipple. She immediately reported the incident to her boyfriend and parents. Within a few days of speaking with a victim's advocate, she also reported the incident to the Tallahassee Police Department. On or about April 4, 2003, Respondent was arrested and charged with one count of Misdemeanor Battery. The charge was ultimately reduced to Disorderly Conduct. Respondent entered into, and successfully completed, a Pre-Trial Diversion Program. On or about July 8, 2003, the State Attorney's Office issued a "No Information" on the case, and Respondent's criminal record was subsequently expunged. The Leon County School Board brought charges to terminate Respondent. On or about August 7, 2003, Respondent resigned from his employment with the Leon County School Board, pursuant to a settlement agreement which included an agreement that he not apply to teach in Leon County for two years and sanitizing of his school record at the end of that period. There was no proof offered by students, teachers, or administrators, that this incident had offended contemporary community standards or otherwise had reduced Respondent's effectiveness as an educator. As a result of this incident, however, Respondent left a tenured professional services contract with the Leon County School Board, thereby suffering loss of income and retirement benefits. He has also suffered financial consequences in the form of attorney's fees and costs for his criminal and employment cases and for the instant license discipline case. Respondent has been, and continues to be, very embarrassed by his conduct on March 27, 2003, because he is a married man. His relationship with his wife and children has suffered. Respondent represented his conduct with his former student to be a purely spontaneous act of poor judgment which has changed his life, and he deeply regrets it. He has sought professional counseling and has learned to constantly be aware of his interactions and reactions to the people around him so that the offensive incident will not be repeated. Upon leaving Lincoln High School and the Leon County School District, Respondent was first employed in contiguous Jefferson County at Monticello New Life, a 30-girl high security facility, where he excelled as a teacher of several subjects and where he once received the Employee of the Month Award. Since July 2005, he has been employed in Leon County as an educator at Tallahassee Marine Institute, a day treatment center and high risk residential program for adolescents, where he also has been the recipient of the Employee of the Month Award for one month. In this capacity, he is employed by the Florida Department of Juvenile Justice. After disclosure of his criminal record to that agency, he has satisfied all of its background checks. Tallahassee Marine Institute requires its instructional employees to have a valid teaching certificate. If Respondent's teaching certificate were to be suspended or revoked as a result of this case, he would be terminated from his current employment at Tallahassee Marine Institute.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a final order that: Suspends Respondent's educator's certificate retroactive to August 7, 2003, and for two years, ending August 7, 2005; Places Respondent immediately, upon entry of the Final Order herein, on probation for two employment years, with the conditions that he shall: Within the first year of the probation period provide a certified college or in-service program transcript to verify his successful completion or a grade of "pass' or a letter grade no lower than "B" of a course in the area of professional ethics; Notify the Educational Practices Commission immediately upon his employment or any change of employment as an educator in any public or private Florida school; Have his immediate supervisor submit performance reports to the Educational Practices Commission at least every three months; Within 10 days of issuance, submit to the Educational Practices Commission copies of all formal observations and evaluations of him; During the first three months of each probation year, pay to the Educational Practices Commission $150.00 to defray the costs of monitoring Respondent during that year; and Requiring that all costs incurred in fulfilling the terms of probation shall be borne by Respondent. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of January, 2006.
The Issue The issue in this case is whether the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), should enter into a contract with Southern Photo Supply as low responsive bidder under Invitation to Bid (ITB) 052-98; the Petitioner, E. L. Cole Photography, Inc., contends such a contract would breach the Petitioner's contract under ITB 055-97.
Findings Of Fact On May 14, 1997, the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), awarded a contract for miscellaneous photographic supplies to the Petitioner, E. L. Cole Photography, Inc., as the low responsive bidder under ITB 055-97. ITB 055-97 replaced a similar contract awarded to Southern Photo Supply, as the low responsive bidder under ITB 039-94. Both ITBs were restricted to minority business enterprises (MBEs). Both ITBs (039-94 and 055-97) specified supplies listed under "Product Groups." The preamble to the "Product Groups" list in the bid specifications for both ITBs stated: The following product groups include the listed representative products and the anticipated order quantities for the representative products during the . . . contract period. These lists are based on a combination of experience and estimation, and are furnished to assist bidders to determine their interest in the contract and to estimate the type and volume of business that might be derived from the contract. However, the agency reserves the right to vary both products used and quantities required as may best serve the interests of the agency in carrying out agency business. Both lists included a group consisting of various types of color negative standard roll film in quantities ranging from 120 to 360 rolls. ITB 039-94 was for an eighteen-month contract (through June 30, 1995), renewable for two additional twelve-month terms. ITB 055-97 was for a five-year contract (through June 30, 2002), renewable for one additional five-year term. Both ITBs (039-94 and 055-97) included the following provision entitled "Additions/Deletions": "As products and agency requirements change over the life of the contract the agency may add new or different products to an appropriate discount group, or increase the use of products, at the same discount rate, or discontinue or reduce the use of products." Twice during the life of the 1994 contract, the Department solicited price quotes from Southern Photo for a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94. Southern Photo responded that it would sell the film to the Department at a 33% discount, which was even higher than the already deep 32% discount for color negative standard roll film in Southern Photo's response to ITB 039-94. The Department saw no need to solicit price quotes from other suppliers to verify that Southern Photo's 33% discount was deep enough to justify foregoing the issuance of an ITB for the film, with attendant administrative costs and delay. Instead, the Department added the purchase to the 1994 contract using the "Additions/Deletions" clause. The second time the Department added a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94 was about the time it was awarding the contract to the Petitioner under ITB 055-97. In the Petitioner's response to ITB 055-97, the discount for color negative standard roll film in the Petitioner's response to ITB 055-97 was 18%. Upon inquiry, the Department was advised that Southern Photo again would sell the large order at a 33% discount. Given the depth of Southern Photo's discount, as compared to the discount for color negative standard roll film offered in the Petitioner's response to ITB 055-97, the Department's decision was logical and reasonable. The Department assumed that the Petitioner would not reduce its price for color negative standard roll film from an 18% discount down to a 33% discount. It also was logical and reasonable for the Department to believe that it would not get a price quote from any other MBE that would be enough below Southern Photo's price quote to justify the administrative cost and delay of issuing an ITB for the film. On or about April 22, 1998 (long after Southern Photo's contract under ITB 039-94 had expired and well into the Petitioner's contract under ITB 055-97), the Department decided it needed to place another large (11,000-roll) order of color negative standard roll film that was not specifically listed under "Product Groups" in ITB 055-97, namely Kodak Ektapress PJ400 135/36 (PJ400). The Department asked the Petitioner for a price quote. The Petitioner took the position that the order was covered by its contract under ITB 055-97 and quoted a price ($4.95 a roll) that would reflect the 18% discount offered on color negative standard roll film in the Petitioner's response to ITB 055-97. The Department believed that it could buy the PJ400 film at a price low enough to justify the administrative cost and the delay of issuing an ITB for the film instead of adding it to the Petitioner's contract at $4.95 a roll. To ascertain if its belief was accurate, the Department solicited price quotes from several other MBEs and was able to obtain lower quotes, including a quote from Southern Photo of $3.96 a roll. The Department decided that the prospect of possibly saving $11,000 or more would be worth the administrative cost and delay of issuing an ITB for the film. On or about May 22, 1998, the Department issued ITB 052-98 for 11,000 rolls of PJ400 film. Both the Petitioner and Southern Photo responded. Southern Photo again offered a price of $3.96 a roll. Recognizing that it was not bound by the 18% discount in its response to ITB 055-97, the Petitioner bid $4.30 a roll. However, the Petitioner submitted its response "under protest." The Petitioner made clear in the cover letter to its response that the Petitioner still believed that the 11,000 rolls of PJ400 film should be added to the Petitioner's contract under ITB 055-97. On June 4, 1998, the Department posted notice of its intent to award the contract to Southern Photo. The Petitioner filed a notice of protest on June 9 and a formal protest on June 22, 1998. In its protest, the Petitioner took the position that the intended award of the contract to Southern Photo would breach the Petitioner's contract under ITB 055-97. In part, the Petitioner based its protest on its understanding that, at the opening of the responses to ITB 055-97, the Department's Chief of Contract Purchasing, William R. Rothman, answered in the affirmative a question from the Petitioner's principal, Eddie Lee Cole, Sr., as to whether the Petitioner would be the supplier of all of the Department's needs for photographic supplies under ITB 055-97. Cole's testimony in support of the Petitioner's protest is rejected as being either a miscommunication or a misunderstanding on his part. It is not believed that the Department's Chief of Contract Purchasing would have answered such a question in the affirmative in the face of the provisions of ITB 055-97. See Findings 2 through 4, supra. Despite the possible ambiguity injected by the use of the phrase "representative products" in the preamble to the "Product Groups" list in the bid specifications for ITB 055-97, Rothman testified that he viewed the purpose of the phrase to be to give the Department flexibility in the use of the "Additions/Deletions" clause. In particular, Rothman understood the purpose of the phrase to be to alert bidders that the Department would not necessarily purchase all listed products or purchase them in the listed quantities. Given Rothman's interpretation of ITB 055-97, it is not likely that Rothman would have given an affirmative answer to Cole's alleged question. If he did, it is found that Rothman's answer was intended to incorporate the provisions of the ITB as defining the contractual relationship between the Department and the Petitioner. The Petitioner's protest also was based in part on evidence that, on at least one occasion, the Department purchased from the Petitioner photographic supplies not specifically listed under "Product Groups" in ITB 055-97 without making formal use of the "Additions/Deletions" clause. However, it is found that the Department's action in that regard was an oversight from not carefully comparing its purchase orders to the "Product Groups" list. Reading the ITB in its entirety and in pari materia, it is found that the phrase "representative products" was not intended to require the Department to purchase large (11,000- roll) orders of color negative standard roll film not specifically listed under "Product Groups" in ITB 055-97 from the Petitioner. (Despite this finding, it is suggested that rephrasing the language in future ITBs may eliminate ambiguity, as well as the cost and delay it apparently caused in this case.) The Petitioner's protest also was based in part on its concern that, despite virtually identical pertinent ITB provisions, the Petitioner was not treated under its contract (ITB 055-97) the same way as the Department treated Southern Photo under its contract (039-94). However, as reflected in these findings, the Department actually treated both contractors the same; the outcome of that treatment was different only because Southern Photo's price quotes for large orders of color negative standard roll film not specifically listed under "Product Groups" were much lower than the Petitioner's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the Petitioner's bid protest and awarding the contract under ITB 052-98 to Southern Photo Supply. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Barbara Hobbs, Esquire Cummings, Hobbs and Wallace, P.A. 1020 East Lafayette Street, Room 205 Tallahassee, Florida 32301 Judson M. Chapman, Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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
