The Issue The issue is whether the School Board’s action in awarding the contract for the sale of declared surplus to Develyn M. Smith was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On October 17 and 24, 1996, respondent, Putnam County School Board (Board), published a notice in the Palatka Daily News soliciting bids on a five-acre parcel of surplus property in Putnam Hall, a small rural community in northwestern Putnam County. The notice provided that “(s)ealed bids should be submitted . . . by 1:00 p.m. on November 4, 1996,” and that the bids would be opened at 1:30 p.m. the same day. In response to that notice, petitioner, Positive Images Alternative Enrichment Group, Inc. (petitioner or PIAEG), and respondent, Develyn M. Smith (Smith), submitted offers of $10,000.00 and $3,500.00, respectively. On November 25, 1996, the Board awarded the contract to PIAEG, the highest bidder. When PIAEG failed to provide a binder and sign a contract for sale and purchase by the Board’s January 13, 1997 meeting, the Board rescinded its earlier action and awarded the contract to Smith, the next highest bidder. On January 24, 1997, petitioner filed its written protest of the Board’s action. The facts underpinning the Board’s action are set forth below. On November 4, 1996, the two bids were opened by assistant superintendent Anthony C. Thompson. On November 6, 1996, Thompson submitted a memorandum to the Board in which he recommended that PIAEG’s bid be accepted. This recommendation was formally approved by the Board at a meeting held on November 25, 1996. Whether notice of this intended award was posted is not of record. On November 25, 1996, or the Monday before Thanksgiving, the Board’s general counsel, Joe Pickens, telephoned PIAEG’s representative, Lawrence Hutcherson, and advised him that, as the successful bidder, PIAEG must give the Board a $1,000.00 binder and execute a contract to purchase the property. He was further told that after doing so, the Board would commence title work on the land. Hutcherson asked if he could delay providing a binder and signing the contract until after the holidays, or until the week of December 2. Pickens orally agreed to this request. Pickens heard nothing from Hutcherson until he received a copy of a letter to the Board’s superintendent dated December 23, 1996, in which PIAEG’s secretary, Jonathan Williams, asked that “any action on said property (be) withheld until our meeting with the Rural Development Agency in Ocala January 7, 1997.” The letter added that the “request is made to allow our organization to seek resources for the planned community facility.” The delay was sought after PIAEG learned of possible federal grant moneys available through the State, and decided to use that source of money for financing the acquisition rather than relying upon its own funds. Hutcherson made no inquiry with the superintendent or Pickens to determine if the extension of time had been granted. Rather, he just assumed that his request would be approved since he was unaware of any time constraints on purchasing the property. By the same token, neither Pickens nor the superintendent responded to the letter. Pickens, however, discussed the matter with a Board representative, and the two agreed an extension of time would be satisfactory since the next Board meeting was not until January 13, 1997, or after PIAEG’s meeting on January 7. While Pickens expected Hutcherson to contact him before the next meeting, he did not convey this advice to Hutcherson. At the January 7 meeting in Ocala, PIAEG learned that until rules were adopted by the Department of Community Affairs, no grant applications could even be considered. At that time, Hutcherson was led to believe that such rules would not be adopted before May 1997. At hearing, he stated that this time had subsequently been extended, and he is now unsure when the rules will be adopted. Hutcherson did not report this information to Pickens before the January 13 Board meeting because he says he needed several weeks to prepare an appropriate report. Also, until the afternoon of January 10, he was unaware of the meeting. Finally, he had received no response to his letter of December 23 requesting a delay, and he reasonably assumed that no action would be taken until after he filed his report. After receiving no advice, oral or written, from Hutcherson regarding PIAEG’s January 7 meeting in Ocala, Pickens recommended to the Board at its January 13 meeting that it rescind its earlier award of the contract to PIAEG and that Smith’s bid be accepted. The Board approved this recommendation. The Board acknowledges that it did not post notice of this intended action. On January 17, 1997, and without knowledge that its award had been rescinded, PIAEG’s secretary sent a letter to the Board’s superintendent asking that a further extension be granted. The letter explained that PIAEG planned “to have a pre- application (for grant moneys) ready within the next 45 days.” Shortly thereafter, Hutcherson learned of the Board’s action, and PIAEG filed its protest on January 24, 1997. After settlement negotiations failed, this proceeding was begun. Except for the notice pertaining to the date on which sealed bids had to be filed, there were no other specifications governing this bid solicitation. Thus, there was no written requirement that a binder had to be filed by a date certain, or that the successful bidder had a specified period of time in which to close on the property or risk loss of the contract. When PIAEG filed its sealed bid, it erroneously used the name “Positive Images Alternative Group, Inc.” instead of its correct name. After its bid was submitted, PIAEG sent a letter to the Board’s general counsel and superintendent on December 23, 1996, using its correct name. The Board has represented that this change was immaterial, did not affect the outcome of the case, and would not be a disqualifying factor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Putnam County School Board enter a final order rescinding its action taken on January 13, 1997, and awarding the contract to petitioner. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997. COPIES FURNISHED: Geri Melosh, Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Lawrence Hutcherson Post Office Box 2186 Palatka, Florida 32178-2186 Joe H. Pickens, Esquire 222 North Third Street Palatka, Florida 32177-3710 Develyn M. Smith 1116 Bellamy Road Melrose, Florida 32666
The Issue The issue is whether 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 the changes to the Department's Invitation to Bid (Rebid II) suggested by Polaroid and/or NBS should be made? GENERAL. The Parties. The Department is the state agency charged with, among other things, the responsibility to adopt and implement a program for the production of color photographic drivers' licenses for the State of Florida, pursuant to Chapter 322, Florida Statutes. Polaroid and NBS are the two major suppliers of equipment and materials used in the majority of states to produce color photographic drivers' licenses. Both serve approximately 50 percent of the States. NBS is the current supplier of color photographic drivers' licenses in the State of Florida. Definitions. Florida's color photographic drivers' license is essentially a picture of the driver and a data card containing pertinent information about the driver. A camera takes a picture of the driver and the data card simultaneously. The picture is developed in a relatively short period of time and the resulting picture is laminated with a clear plastic. The size of the portion of the driver photographed and the data card are reduced, obviously, when the picture is taken. The terms reduction factor refer to the size of the resulting license compared to the original data card. For example, a requirement that the license not have a reduction factor of greater than 40 percent means that the resulting size of the picture of the data card photographed must be a least 60 percent of its original size. The resulting picture of the driver and the data card is referred to as the core. The core consists of a picture of the driver's face, neck and shoulders, the data card and a "header bar" which is the area above the data card containing "Florida Driver License" on the currently used drivers' license in Florida. The core may be fully laminated with clear plastic. If so, the laminate may be sealed in two ways: "flush-cut" or "lip-seal." If the lamination goes just to the edges of the core, this is referred to as a flush- cut design. If the laminate goes beyond the edges of the core and the front and back lamination is sealed together, this is referred to as a lip-seal design. The type of film used generally is referred to as either "paper-based film" or "plastic or polyester-based film." If the core consist of paper-based film the core will consist of a layer of plastic on the front and back and a paper center. If the core consist of plastic-based film the core will be all plastic. An ultraviolet or black-light security feature means that letters or an image of some kind can be seen with the naked eye only under an ultraviolet or black-light. HISTORY OF FLORIDA'S COLOR PHOTOGRAPHIC DRIVERS' LICENSE. The Initial Contract. Color photographic drivers' licenses (hereinafter referred to as "License" or "Licenses"), have been used in the State of Florida since December 3, 1973. The initial contract entered into by the Department for the provision of Licenses (hereinafter referred to as the "Initial Contract") was with DEK Processes Division of Scott & Fetzer Company. The DEK Processes Division of Scott & Fetzer Company was acquired by NBS in March of 1985. The Initial Contract was entered into for the period 1973 to 1977. The Licenses produced pursuant to the Initial Contract were laminated with a lip seal, measured 3-3/8" x 2-1/8", had a paper-based film core which measured 2-3/4" x 1-3/4" and cost the State 37.98 cents per License. The Initial Contract was renewed in 1977. The renewed contract was valid through 1981 and provided for Licenses which measured 3-3/8" x 2-1/8", flush-cut sealed lamination, a polyester-based film core and cost the State 36.725 cents per License. By using a flush-cut seal, the size of the film core increased to the same size as the License. This increase in size was instituted because of negative reactions to the legibility of the Licenses produced under the Initial Contract raised by law enforcement, merchants and the public. The 1982 Contract. In 1981 the Department solicited bids for a new four-year contract with a four-year extension option (increasing the length of the contract to June 30, 1990). The 1981 Invitation to Bid allowed a large or small license and the use of a paper-based or plastic-based film core. Both Polaroid and NBS submitted bids on the 1981 Invitation to Bid. NBS was awarded the contract, which it entered into with the Department on February 22, 1982 (hereinafter referred to as the "1982 Contract"). The 1982 Contract contained the following relevant provisions: The initial term of the contract was through June 30, 1986; Licenses were to be lip-sealed; The Licenses were to measure not less than 2-3/4" wide and 1-3/4" high and not more than 3-3/8" x 2-1/4" before lamination; A paper-based film core measuring 2-3/9" x 2-3/4"; The price per License to the State during the first four years was to be 42.9 cents; The price per License to the State during any extension was to be 42.9 cents plus or minus the increase or decrease in the cost of material; and The contract could be extended for an additional four years through June 30, 1990. The laminate had to be bonded to the License in such a way that it would be impossible to remove the laminate without destroying the License; and The License had to have an ultraviolet or "black- light" security feature. The current Florida License is produced pursuant to an extension of the 1982 Contract. The First Invitation to Bid - 1985. In June of 1985 the Department decided to issue an invitation to bid seeking to let a new License contract rather than exercising the option to renew the 1982 Contract. This decision was made because of a desire to improve the legibility, security and durability of the currently produced License. In June, 1985, Major Clay W. Keith, former Director of the Department's Division of Drivers' Licenses, proposed the appointment of a task force to study the License in use in 1985 under the 1982 Contract and possible improvements thereto. Major Keith proposed the task force in anticipation of the June, 1986, expiration of the initial four-year term of the 1982 Contract. Three major concerns were raised by the Department with regard to any License the State issued: legibility, durability and security. The Department had received complaints from law enforcement and merchants concerning eligibility of the existing License and previous Licenses. The Department had also received complaints concerning the ability to counterfeit or alter the existing License and previous Licenses. The Department had also had problems with the durability of previous Licenses. Additionally, current law allows renewal of Licenses for six year terms and up to eight or ten years in some cases. On July 3, 1985, Major Keith advised Mr. Leonard R. Mellon, the Director of the Department, and Mr. Fred Dickinson, Deputy Director of the Department, by memorandum that a task force of persons with the expertise believed to be needed to study the existing License was being formed to decide what type of License to use in the future. 0n July 10, 1985, Mr. Mellon wrote a note to Major Keith indicating the following: I do not want a task force established for this purpose. Please see me as soon as possible to discuss this matter. Major Keith, as directed, saw Mr. Mellon. Mr. Mellon gave Major Keith a sample License and told Major Keith that the sample License was what the Department wanted. The sample License was an all-plastic License, similar in design and thickness to a credit card. It had embossed letters, like a credit card, of certain information. Mr. Mellon explained that the sample License would meet the Department's desire to provide a License which was durable, legible and secure. Mr. Mellon obtained the sample License he gave to Major Keith from representatives of NBS, including Barry Horenbein, during a demonstration of identification cards made by DEK sometime during 1985. The 1985 demonstration was attended by Mr. Mellon, Mr. Horenbein, Mr. Vince Toffany, Mr. Carlos Urrutia and Mr. Bobby Bowick. Mr. Toffany, Mr. Urrutia and Mr. Bowick are representatives of NBS. Mr. Horenbein is the legislative liaison of NBS in Florida and has been a close personal friend of Mr. Mellon for over 27 years. The Department ultimately learned that the sample License given to Major Keith by Mr. Mellon could not be produced in the manner that Licenses are produced in Florida. The sample License was produced in a laboratory-type setting and it would be too costly to produce "over the counter" as Licenses are produced in Florida. In the Fall of 1985 the Department issued an invitation to bid instead of renewing the 1982 Contract with NBS and decided not to attempt to produce a License identical to the sample License given to Major Keith by Mr. Mellon. The Department decided to issue an invitation to bid in order to obtained a more legible, durable and secure License. The Department issued an Invitation to Bid on November 27, 1985 (hereinafter referred to as the "First ITB"). Among the specifications contained in the First ITB, were the following: The film core of the License was to be a plastic-based film core; Lamination: flush-cut seal; The License was to measure 3-3/8" x 2-1/8"; and An ultraviolet security system. No requirement as to the maximum reduction factor was contained in the First ITB. At the time the First ITB was issued, Polaroid did not yet have plastic-based film. The Department was not aware of this fact at the time. NBS did have plastic-based film. Based upon information provided to the Department by Polaroid representative, the Department believed that Polaroid could provide a plastic-based film. In fact, Christ Rousseff, an employee of Polaroid, sent a letter dated August 2, 1985, to Mr. Mellon informing him that Polaroid could provide an all plastic-based License. Polaroid and NBS submitted bids in response to the First ITB in January, 1986. Polaroid's bid cost per License was 49.9 cents and NBS's bid cost per License was 56.6 cents. On January 27, 1986 the first bid tabulations indicated that Polaroid's bid was non-responsive as a result of Department of Agriculture testing of the License bid by Polaroid. Polaroid had used a paper-based film core which was revealed in the testing and was contrary to the specifications of the First ITB. NBS's bid to the First ITB was also rejected because the Department of General Services determined that there had not been two responsive bids submitted. The rejection of bids on the First ITB became final agency action. The Department began to prepare a new invitation to bid. On March 6, 1986, Polaroid, at the request of the Department, conducted a demonstration of the type of License it could provide to the Department. Polaroid demonstrated a fully-laminated, lip-sealed, paper-based film core License. The demonstration was attended by Major Keith, Mr. James W. McInnis and other employees of the Department. Mr. Mellon spent about 5 minutes at the demonstration. On March 12, 1986, Major Keith sent a memorandum to Mr. Mellon through Mr. Dickinson concerning the Polaroid demonstration. The Memorandum indicated that Division of Drivers' License personnel agreed that Polaroid had demonstrated the ability to provide an acceptable License. Extension of the 1982 Contract. On March 23 1986, a Sunday, Mr. Mellon and Mr. Dickinson spent the afternoon at the home of Mr. Horenbein. Present were Mr. Horenbein, Mr. Toffany and Mr. Bowick, all of whom represented NBS. A buffet dinner was served. Discussions occurred on this date concerning the price which would be charged for Licenses and whether additional cameras could be provided if the 1982 contract was extended for an additional four years pursuant to the renewal option contained in the 1982 Contract. Mr. Mellon, on behalf of the Department, and the representatives of NBS agreed at the Sunday dinner that the 1982 Contract would be extended. Agreement was reached on a price per License to be paid and on the provision of additional cameras. Other discussions had taken place concerning whether to extend the 1982 Contract. On Monday, March 24, 1986, Mr. Dickinson met with Department personnel and informed them that the 1982 Contract would be extended. A Renewal of Color Photographic Driver License Agreement was prepared. This agreement provided that the price per License for the extended term would be a set price of 42.9 cents instead of the 42.9 cents per License adjusted for any increase or decrease in the cost of sensitized photographic materials and laminates as specified in the 1982 Contract. The renewal also provided that NBS would provide additional camera equipment. The Department executed and tendered to the Department of General Services its proposed exercise of the option to renew the 1982 Contract. This action by the Department extended the 1982 Contract through June, 1990. Major Keith was not aware of the renewal until after the renewed agreement had been executed. At the time the Department exercised its option to extend the 1982 Contract, the Department only had one week left in which to exercise its option. The option to renew had to be exercised at least ninety days prior to the expiration of the initial term of the 1982 Contract. Because of the lack of time remaining during which the Department could exercise its option, Mr. Mellon decided that renewing the 1982 Contract was in the best interest of the Department. The Department was able to obtain a License at no substantial increase in cost for an additional four years. Following the execution of the renewal of the 1982 Contract, Polaroid filed two Notices of Protest which were filed with the Division of Administrative Hearings by the Department. The Protests were assigned case numbers 86-1337 and 86-1372. On May 6, 1986, Polaroid, the Department and NBS entered into an agreement settling the dispute in case numbers 86-1337 and 86-1372. Pursuant to the settlement agreement, NBS agreed to continue providing Licenses at a cost of 49.58 cents per License. The term of the renewal was shortened to expire on August 31, 1987 and the parties agreed that there would be no further extensions of the 1982 Contract agreed upon without the approval of the Governor and the Cabinet. Finally, the parties agreed that a new invitation to bid would be issued to obtain a provider of Licenses beginning September 1, 1987. The Governor and Cabinet approved the settlement in May of 1986. The settlement became final agency action. Licenses currently being produced in Florida pursuant to the renewal agreement approved by the Governors and the Cabinet contain a core slightly smaller than 1-3/4" x 2-3/4", are enclosed in lip-sealed lamination and use ultraviolet security markings on the back of the Licenses. The data card reduction factor is 42 percent. Rebid I. On June 6, 1986, the Department issued a Request for Information in an effort to preclude the development of noncompetitive specifications for future invitations to bid. In response to this request, Polaroid informed the Department that it could not provide an all-plastic License and NBS indicated that it could. On July 22, 1986, Mr. McInnis circulated the first draft of the specifications for the next invitation to bid to Department personnel. It specified a License with full lamination, lip-seal and a plastic-based or paper- based film core. The draft provided that the core of the License was to measure 3-1/8" x 1-7/8" prior to lamination. Ultraviolet light security markings were also required. For the first time, the draft of the specifications included a reduction factor requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall not be less than 60 percent of the size of the photographed document. Section 4.8.1 of the draft invitation to rebid. This provision was included partially because of the responses to the Request for Information submitted to the Department by Polaroid and NBS. Major Keith was told by Mr. Dickinson that "the front office" wanted Rebid I to require a plastic-based film core. Major Keith understood the "front office" to mean Mr. Mellon. In developing the next invitation to bid, the Department determined that enhanced security was a critical concern that needed to be addressed. At least in part, the Department's concern for security was based upon questions raised about security from the Governor's office, the Cabinet and law enforcement. The Department attempted to determine what security features were available. The Department received sales and promotional brochures for various security products from Polaroid, 3M and Armstrong World Industries, Inc. Polaroid, NBS and 3M were all invited to demonstrate their security features to the Department and they made presentations. Polaroid demonstrated "Polasecure" and 3M demonstrated "Confirm." These products and Armstrong's "Armstrong Advantage" are security markings contained in laminating materials which change appearance when the viewing angle of a License changes. Polaroid and NBS made their presentations to the Department, at the Department's request, in September of 1986. The primary emphasis of the demonstrations was security. On October 3, 1986, the Department issued Invitation to Bid (Rebid I) (hereinafter referred to a "Rebid I"). In Rebid I, the Department included the same overall size requirement (3-3/8" x 2-1/8") included in the First ITB. The requirement that the film core be plastic (polyester, polycarbonate or an equivalent plastic) included in the First ITB was also included in Rebid I. The Department changed the seal specified in Rebid I to a lip-seal, added a requirement that the reduction factor should not exceed 40 percent and required a new security feature. Because lip-seal was specified, the Department also provided that the core of the License should measure 3-1/8" x 1-7/8." Rebid I also included the following security requirement which was not included in the First ITB: The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. Section 4.8.3. of Rebid I. The new security feature specified in Rebid I provided for the following: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core ... The security marking feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security marking must be easily discernible with the naked eye, requiring no auxiliary reading devises for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. [Emphasis added]. Section 4.8.4 of Rebid I. Although the Department did not intend to provide any competitive advantage to Polaroid in specifying the security feature of Section 4.8.4 of Rebid I, NBS informed the Department that the description of the security feature underlined in finding of fact 65 was a generic description of "Polasecure." In fact, the language used came out of a speech given by a Mr. DeKeiver at a conference held in Washington D.C. Although Mr. DeKeiver apparently had no connection with Polaroid, the copy of the speech relied upon in drafting Section 4.8.4 of Rebid I was provided to the Department by Mr. Weer, a Polaroid representative. Rebid I provided that potential bidders could submit written changes to the specifications recommended by a potential bidder. In a letter dated October 16, 1986, NBS recommended that "the state require a specific security feature or security product... " other than Polasecure which would be available to both Polaroid and NBS. NBS also recommended that Section 4.8.3 of Rebid I be changed to require a full-cut seal instead of a lip-seal. Polaroid, in a letter dated October 16, 1986, recommended that paper- based film be allowed. On October 21, 1986, the Department rejected Polaroid's recommended change to allow paper-based film and NBS's recommendation to require a full-cut seal. The Department, because of its concern that Section 4.8.4 of Rebid I contained a description of Polasecure, accepted, in part, NBS's recommendation concerning the security feature. The Department changed the security requirement to provide that "Armstrong Advantage or Polaroid Polasecure or department approved equivalent pre-applied security markings ... " be affixed to the inside of the laminate. The Department made this change in an effort to eliminate any competitive advantage to potential bidders. Polaroid and NBS both submitted bids in response to Rebid I. On December 10, 1986, the Department's committee which evaluated the bids submitted in response to Rebid I reviewed the results of tests conducted on the License bid by Polaroid and NBS. NBS's bid was rejected because its License failed to disintegrate, as required by Rebid I, when the laminate was separated from the core. The committee therefore rejected NBS's bid without considering the price it had bid. Although NBS had recommended that the Department specify Armstrong Advantage as a security feature, this security feature was incompatible with the requirement that the photographic image be destroyed upon removal of the laminate. NBS was aware of this and so informed the Department. NBS did not timely inform the Department, however. NBS's proposed License failed to satisfy the test performed on the License because of this incompatibility. Polaroid's bid met the specifications of Rebid I and, upon opening the cost proposals, it was determined that Polaroid's bid price was 71.804 cents per License. On December 10, 1986, the evaluation committee prepared a memorandum in which it indicated that the Polaroid bid should be accepted. Major Keith approved the recommendation and sent the recommendation to Mr. Dickinson. Mr. Dickinson also recommended approval of Polaroid's bid and sent the recommendation on to Mr. Mellon. Mr. Mellon rejected Polaroid's bid because the Department had only budgeted 60.9 cents per License and Polaroid's bid of 71.804 cents was too far in excess of the budgeted amount. The amount budgeted by the Department was based in part on Polaroid's bid in the State of Ohio in September of 1986. Polaroid had bid 55.9 cents per license in Ohio. The Department arrived at 60.9 cents per License by adding approximately 5 cents to the amount bid in Ohio for the additional requirement contained in Rebid I of Polasecure. The product bid in Ohio was not, however, sufficiently similar to the License being sought by the Department to arrive at a budgeted amount for the Florida License. Ohio, unlike Florida, was not seeking a License with full lamination. Therefore, Ohio did not include the cost of laminating equipment, laminating materials or die cutters. There were other differences in Ohio's program which affected the cost bid by Polaroid in Ohio. The Department was not aware of the differences with the License bid in Ohio and the License the Department was seeking in Rebid I. The Department posted its tabulation on December 16, 1986. The Department indicated its decision to reject Polaroid's bid because "cost exceeds budget request." The Department's action with regard to Rebid I is final agency action. Rebid II. In January, 1987, the Department began drafting specifications for the next invitation to bid. Mr. McInnis was one of the primary technical drafters of the invitation to bid. Under the normal "chain-of-command" in the Department, Mr. McInnis received his instructions through or from Major Keith. In early January of 1986, Mr. McInnis was given a note on Mr. Dickinson's note paper by Mr. McCaskill containing the following: Plastic Size Security - Negotiable Maintenance/Serviceability Number of Cameras Mr. McCaskill explained to Mr. McInnis that the first two items, plastic and size, were not negotiable and that the 16 other items were to be studied further. Mr. McCaskill explained that the next invitation to bid was to provide for a License with a plastic- based film core and was to be the same size as in Rebid I, 3-1/8" x 1-7/8". The note from Mr. Dickinson was not received through Major Keith, which was the normal way that Mr. McInnis received instructions from Mr. Dickinson. Mr. McInnis prepared draft specifications and showed them to Major Keith along with the note from Mr. Dickinson. Major Keith instructed Mr. McInnis to submit the revised specifications back to Mr. Dickinson in the chain that he had received the note since Major Keith had not been involved in the instructions Mr. McInnis had received. Mr. Mellon's decision to instruct Mr. McInnis to specify plastic and to stick to the larger size License was made because Mr. Mellon believed that those items would insure a License that was durable, readable and had some security to it. The Department asked for the assistance of the Department of General Services in reviewing the draft of the invitation to bid. The Department of General Services reviewed the draft primarily with regard to the special conditions and not the technical specifications of the draft invitation to bid. On January 27, 1987, the Department issued its third invitation to bid, Invitation to Bid (Rebid II)(hereinafter referred to as "Rebid II"). Rebid II specified that the License was to have a plastic-based film core, lip seal, no more than a 40 percent reduction factor and was to measure 3- 1/8" x 1-7/8". These were the same specifications contained in Rebid I. The security feature contained in Rebid I was replaced with the ultraviolet light requirement of the First ITB. The decision to continue to require plastic-based film core was made by the Department because of Mr. Mellon's belief that it would result in a more durable, readable and secure License. The elimination of the security feature to be contained in the laminate was based upon the Department's desire to obtain a cost bid within the Department's budget. Potential bidders were required to submit any suggested changes to Rebid II in writing. On February 3, 1987, Polaroid timely submitted recommended changes in writing to the Department. The relevant recommended changes included the following: That the requirement of Section 4.8.1 of Rebid II that "photo sensitized polyester, polycarbonate, or an equivalent plastic material be changed to "photo sensitized material Polaroid recommended this change based upon its argument that sealing the photo core in a sealed and bonded polyester laminate would provide the necessary security and durability the Department was seeking and that paper-based film offered substantial cost savings; That the requirement of Section 4.8.1 of Rebid II as to the size of the photo core be changed to allow a range of sizes from 2-3/4" x 1-3/4" to 3-1/8" x 1-7/8". Polaroid recommended this change based upon its argument that the 40 percent maximum reduction factor could be met on a smaller film core and therefore reduce the cost of Licenses; That the ultraviolet light security feature be replaced with a requirement that Polasecure, Armstrong Advantage or equivalent security laminate be provided. Polaroid recommended this change based upon its argument that security would be enhanced at relatively little cost. The recommended changes in the size of the License and the film-core material are similar to the current License specifications. NBS did not submit any written recommended changes to Rebid II. By letter dated February 4, 1987, Secretary of State George Firestone asked Mr. Mellon about the Department's response to the suggested changes from Polaroid and requested an explanation of the specifications of Rebid II. In response to the Secretary of State's inquiry, Mr. Mellon submitted a letter and report to the Secretary of State. In part, Mr. Mellon told the Secretary of State the following: Both Polaroid and NBS have demonstrated their ability to provide a plastic core license. However, NBS informed the Department in a presentation made on September 17, 1986, that it will be unable to obtain paper film after the conclusion of their current contract with the State of Florida (August 31, 1987). They will be unable to bid on any contract for paper-based licenses after that date. In order to provide the State of Florida with the most durable license at the lowest cost, at least two bids providing the same durable core must be considered. Allowing vendors to bid two unlike products, either paper or plastic, would create a situation in which the products could not be objectively evaluated. That type of specification would also give a built-in price advantage to the vendor bidding a paper core, thereby prohibiting a competitive bid for the license, and increasing the price for the State. Mr. Mellon also suggested that the Department's decision to require a large license would make the License more legible and that requiring only an ultraviolet light feature for security was designed to reduce cost. In the draft of the response to the Secretary of State, the Department indicated that Polasecure, Armstrong advantage or similar security laminate would improve security and was preferred by the Department. This language was not contained in the final letter. On February 17, 1987, a meeting was conducted by the Department. It was attended by Mr. Mellon, Mr. Dickinson, Major Keith, Jim Cox and Mr. McCaskill. As a result of this meeting the Department decided to amend the specification contained in Section 4.8.1 of Rebid II pertaining to the film-core of the License. The Department decided to allow a paper-based or plastic-based film core in the hope that the cost bid by the vendors would come within the Department's budgeted amount. Polaroid's other suggested changes were rejected. On February 19, 1987, the Department issued Addenda III to Rebid II. Addenda III amended Rebid II by deleting the requirement that the core be plastic-based film and substituted the requirement that the core be "full color photosensitized material", i.e., paper-based or plastic-based. Addenda III also amended the requirements pertaining to samples. 0n February 20, 1987, Polaroid submitted a Notice of Protest to Rebid II, as amended. NBS submitted a Notice of Protest to Rebid II, as amended, on February 23, 1987. Polaroid and NBS both subsequently timely filed Formal Protests and Requests for Administrative Hearing. THE ALLEGED DEFICIENCIES OF REBID II, AS AMENDED. General Requirements of Rebid II, as Amended. A successful bidder to Rebid II would be required to furnish the Department with camera systems, photographic backdrops, film, laminating materials and equipment, training, support, maintenance and all other equipment and supplies necessary to produce Licenses and identification cards at License issuing offices of the Department throughout Florida. For each License or identification card produced, three film negatives must also be produced. The Department's License examiners will operate the equipment and produce Licenses. Approximately 1,000 examiners will have to be trained and supported. A fixed price for each License actually issued will be paid. Licenses not issued because of equipment problems or defective materials are not paid for by the Department. The driver, data card and header bar are photographed simultaneously and the images are optically combined by the camera system on a single piece of instant photographic film. The film is trimmed to the appropriate size in a "die cutter." The combined image recorded on the film core is simultaneously recorded on color negative roll film. Each negative is imprinted with a number. Two black and white, 16 millimeter roll film negative copies are made. A "rapid retrieval system" including two microfilm reader/printers, to retrieve copies of the negatives must be furnished by the successful bidder. The film core is to be laminated with a 1/8" lip seal. The License is to be the same size as a credit card, 2-1/8" high by 3-3/8" wide. This is the size of Licenses issued in most states. The License must be sufficiently durable to last seven years without deteriorating to the point that its functions are compromised. Printed data on the License should be sufficiently legible for law enforcement officers and others who rely on the License as a form of identification. The License should be secure it should be difficult to alter a License or to product a counterfeit License without the altered or counterfeit License being detectable. The primary goal of the Department in issuing Rebid II, as amended, was to provide a License at a reasonable cost which is legible, durable and secure. Polaroid's and NBS's Challenge to Rebid II, as Amended. Rebid II, as amended, represents the Department's third attempt to let a new contract for the issuance of Licenses. The Department's rejection of the first two attempts, the First ITB and Rebid I, have become final agency action. The extension of the 1982 Contract has also become final agency action. In this proceeding NBS has challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that the film core is to be "full color photo sensitized material." NBS has contended that the film core should be composed of "polyester, polycarbonate or equivalent plastic material." The requirement of Section 4.8.1 of Rebid II that the "document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the date card shall be not less than 60 percent of the size of the photographed document." NBS has contended that a 30 percent reduction factor should be specified. The requirement of Section 4.8.3 of Rebid II that a lip-seal lamination design be used. NBS contends that a flush-cut design should be required. Polaroid challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III that the film core be "3-1/8 inches wide and 1-7/8 inches high prior to lamination." Polaroid contends that a range of sizes should be specified, from 2-7/8 to 3-1/8 inches wide and from 1- 3/4 to 1-7/8 inches high. The requirement of Section 4.8.4 of Rebid II which requires a black-light security feature. Polaroid contends that the Department should specify a security marking applied to the inside of the front laminate which is visible in ordinary light and is alternately visible and invisible as the angle of viewing the License is changed. The requirement of Section 4.10.4 of Rebid II that no applicant be required to wait for a second applicant before the first applicant's License is processed. The parties stipulated that this challenge arose as a result of a misunderstanding of the requirements of Section 4.10.4 of Rebid II. Based upon a clarification of this Section by the Department Polaroid agreed not to pursue this portion of its challenge to Rebid II. At the final hearing, Polaroid and NBS maintained that the Department had evidenced a bias in favor of the other. Film Core; Section 4.8.1 of Rebid II, as Amended by Addendum III. Section 4.8.1 of Rebid II, as amended by Addendum III, provides, in pertinent part: The finished color photo core of the driver license or identification card shall be full color photo sensitized material .... This provision replaces the requirement of Rebid II before amendment that the License be "full color photosensitized polyester, polycarbonate, or an equivalent plastic material Other pertinent provisions of Rebid II which affect the type of film- core material include the following: The Color photographic image must remain stable and survive intact under conditions of strenuous wear and tear and the photographic image must not significantly deteriorate or become illegible during the life of the license (seven years). The Contractor shall bear the cost of materials and supplies for the reissuance of each license or identification card which must be reissued due to failure to meet these requirements. The license or identification card shall be fully laminated, front and back, with a 1/3 inch lip seal. The laminate shall be not less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the side of the laminate. The finished license shall be 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. The finished license shall be not less than .021 inch and not more than .062 inch thick after lamination. The contractor shall be responsible for the supply of laminating equipment, materials, support services (e.g. training) and all other commodities necessary to assure that driver licenses have appropriate protection and security laminates. As a part of their equipment demonstration, bidders shall submit with their bid twenty- five (25) sample licenses and ten (10) sample identification cards for testing and evaluation by the State of Florida. The samples must be identical to the proposed license and identification cards. If the proposed samples submitted for testing do not fulfill the requirements of this ITB, the State may reject the bid solely on this basis. Samples must be submitted at no additional cost to the State and additional quantities specified by the Department for further testing after opening of the bid must be supplied as long as said quantity does not exceed 100. Sample licenses and identification cards will be tested by the Division of Chemistry, Department of Agriculture and Consumer Services of the State of Florida. These tests will include a tear test, an abrasion test, a tensile test, the use of a fadeometer, and a test of the ease of alteration. The tear test must exhibit a strength of at least 100 lbs., while the license must have a tensile strength of at least 250 lbs/in of width. The abrasion resistance must show either no or only a slight dulling of the surface after 300 strokes with a dry nylon brush and there should be no or only slight fading visible with the use of the fadeometer. The provision of Rebid II pertaining to the film-core material used cannot be reviewed in a vacuum. The provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II quoted above have not been challenged by Polaroid or NBS and must be considered when reviewing the film-core material requirement of Rebid II. When the provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II and the film-core requirement of Rebid II, as amended, are taken into account, the Department's goal of providing a legible, secure and durable License should be insured. The effect of Addendum III is to allow potential vendors to bid a License which contains a paper-based or plastic-based film core. NBS has contended that the Department is restricting competition by allowing a paper-based film core License to be bid. The evidence fails to support this contention. Polaroid is the primary manufacturer of paper-based instant photographic film, producing as much as 85 percent of such film. There is, however, at least one other manufacturer of paper-based film. That manufacturers is currently supplying paper-based film to NBS for use in producing the current License used in Florida. NBS has been notified by its current supplier of paper-based film that the film cannot be produced and supplied to NBS at the current price because it is only being manufactured for NBS's use in Florida. The evidence did not prove whether the statements made to NBS are true. Even if it is assumed that NBS cannot obtain paper-based film except at a higher price, the evidence did not prove that NBS cannot obtain paper-based film. Nor did the evidence prove that only one of the potential bidders could produce a License with "full color photo sensitized material." In the response to Rebid I, Polaroid and NBS produced a license which would meet this requirement. NBS's plastic-based film which it uses to produce Licenses has better contrast and resolution than Polaroid's paper-based film. NBS's Dekachrome polyester material, which is manufactured by Ciba-Geigy, will resolve in excess of 100 lines per millimeter, and may resolve up to 140 lines per millimeter, resulting in the ability to render a high degree of resolution for smaller items, including type or letters. Polaroid's film generally resolves at approximately 14 lines per millimeter, with a maximum resolution of 20 lines per millimeter. The NBS Dekachrome film has approximately a five to one factor of sharpness and clarity over Polaroid film. The contrast ratio of NBS Dekachrome material is approximately 77 percent and the contrast ratio of Polaroid film is approximately 73 percent. The difference in contrast and resolution can be measured in the laboratory. The evidence failed to prove that the differences significantly affect the legibility of Licenses actually produced using the film of Polaroid or NBS. The evidence also failed to prove that there is any significant difference in the legibility of Licenses produced with plastic-based film or paper-based film. There is no difference between Polaroid's plastic-based film and its paper-based film with regards to contrast and resolution. The difference in Polaroid film and NBS film is caused by the instant development process used by Polaroid and not by the difference in the material it uses. Therefore, the differences in contrast and resolution would exist even if Polaroid bid a plastic-based film. The evidence failed to prove that plastic-based alterations to Licenses or counterfeiting of Licenses. Rebid II, as amended, provides that sample Licenses are to be produced under the Department's supervision after bids are submitted. Those Licenses then must pass tests for tear strength, tensile strength, scratch resistance and resistance to fade. These provisions of Rebid II have not been challenged. These provisions will test the durability of the Licenses whether paper-based film or plastic-based film is used. Rebid II, as amended, allows the laminate to be a minimum of 0.007 inches to a maximum of 0.062 inches thick. The thickness of the laminate selected and the film core will affect the tear strength and tensile strength of Licenses. Use of a lip-seal laminate will also affect the durability of the License and eliminate the durability problems of paper-based film. Both Polaroid and NBS can bid in response to the requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that plastic-based or paper-based film be used. Reduction Factor; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, provides, in pertinent part, the following requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall be not less than 60 percent of the size of the photographed documents. The above quoted portion of Section 4.8.1 of Rebid II was contained in the original Rebid II issued by the Department on January 27, 1987, and was not amended by the Department. Section 4.8.1 of Rebid II also requires that the License core is to be 3-1/8 inches wide and 1-7/8 inches high prior to lamination. Section 4.8.3 of Rebid 11 requires that the finished License is to measure 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. These requirements were contained in the original Rebid II issued by the Department on January 27, 1987, and were not amended by the Department. Sections 3.2 and 3.3.2 of Rebid II provide for consideration by the Department of proposed changes to Rebid II. Section 3.3.2 of Rebid II provides the following requirements with regard to the manner in which changes were to proposed by potential bidders: The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications. Requests for changes to the Invitation to Bid must be received by the state not later than 5:00 p.m., February 3, 1987. A Bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications. NBS's challenge to the 40 percent reduction factor requirement of Section 4.8.1 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that the maximum 40 percent reduction factor be changed to a maximum 30 percent reduction factor. Sections 3.2 and 3.3.2 of Rebid II have not been challenged by Polaroid or NBS. At the commencement of the final hearing of this case the Department announced that it intended to change the reduction factor requirement of Section 4.8.1 of Rebid II to require a maximum reduction factor of 30 percent instead of the maximum of 40 percent contained in Rebid II as challenged in this proceeding. Lip Seal; Section 4.8.3 of Rebid II, as Amended. Section 4.8.3 of Rebid II requires, in pertinent part, the following: The license or identification card shall be fully laminated, front and back, with a 1/8 inch lip seal. The laminate shall be no less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the inside of the laminate. The finished license shall be 3- 3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed... [Emphasis added]. NBS's challenge to the lip-seal lamination requirement of Section 4.8.3 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that a flush-cut seal be substituted for a lip-seal method of sealing the lamination. The estimated cost per unit of lip-seal lamination for NBS's Licenses is six to eight cents per License. The requirement of a lip-seal laminate contained in Rebid II was intended to provide additional security and durability. Lamination tends to prevent moisture, which causes deterioration of the License, from penetrating the photo emulsion of the photo-core. Whether plastic-based or paper-based film is used, the film emulsion layer may be scratched off if no lamination is used. Emulsion can also be removed from plastic-based film by moistening the film surface. The Department used a plastic, unlaminated License in 1978. The photo emulsions of this License came unattached from the license core and had to be laminated. The Department tried to use a flush-cut seal on paper-based film as a result of the problems it had with deterioration of the License produced by NBS in 1978. Flush-cut sealing of a paper-based film License does not stop the deterioration problems caused by water damage. The requirement of Section 4.8.3 of Rebid II that the License be lip- sealed is reasonably calculated to enhance the security and durability of the License. It will also enhance legibility by eliminating deterioration of the License. The requirement of Section 4.8.3 of Rebid II concerning lip-seal lamination does not restrict competition. Both Polaroid and NBS can bid a License with lip-seal lamination. F. Security; Section 4.8.4 of Rebid II, as Amended. Section 4.8.4 of Rebid II provides: The finished license or identification card shall contain security markings to be specified by the Department. The security markings shall be printed in fluorescent dye or a similar process so that they become visible when exposed to ultraviolet light. The security markings may be a part of the laminating process. Section 4.8.4 of Rebid I, as amended by Addenda III, provided: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core. The graphic design of the pro- applied security markings must be approved by the Department. The security markings feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security markings must be easily discernible with the naked eye, requiring no auxiliary reading devices for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. The First ITB contained the same security feature contained in Rebid II. A security feature like Polasecure, which changes appearance when the viewing angle changes, would provide a bettor deterrent to alterations and counterfeiting of Licenses than ultraviolet light. Such a security feature can be seen by law enforcement and others without any auxiliary viewing devices or special lighting. Although the security feature contained in Rebid I would enhance the security of Licenses, it was eliminated from Rebid II because of the inability of NBS to bid a License which contains such a feature and is consistent with the adhesion of the lamination specifications contained in Rebid I and Rebid II and because of the additional cost of such a feature. Polaroid had represented to the Department that Polasecure would increase the cost of a License by approximately five cents per License. The evidence failed to prove that this information is correct. The evidence suggests that additional cost of Polasecure is in excess of five cents per License. The ultraviolet security feature will provide security against unsophisticated counterfeiters and ensure the security goal of the Department is met. The Department is attempting to provide security against amateurs. Given enough time, any security feature can be counterfeited. Even products like Polasecure can be stolen from driver license offices and used to produce counterfeit Licenses. The Department properly weighed the need for a security feature for Licenses and the cost of such security features and has provided a reasonable security feature in Rebid II. Polaroid and NBS can produce a License which meets the security requirement of Rebid II. License Size; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, requires that the core of Licenses measure 1-7/8 inches by 3-1/8 inches. Polaroid has suggested that this provision be changed to allow a range of 1-3/4 inches by 2-3/4 inches to 1-7/8 inches by 3-1/8 inches. The smaller size core suggested by Polaroid is used in 26 of the 27 states presently served by Polaroid and by various agencies of the federal government. If the smaller size core is allowed, Polaroid can produce two Licenses from one sheet of its film. If the larger size core is required Polaroid can only make one License from each sheet of film. The Department has required a larger License size in order to improve the legibility of Licenses. The Department is concerned about complaints it has received from law enforcement officers and others about the legibility of the currently used License. The current License is legible by anyone who meets the vision requirements for employment by the Florida Highway Patrol, given good lighting and proper lenses to correct any vision problems the person may have. Not everyone, however, meets the vision requirements for employment by the Florida Highway Patrol. More importantly, law enforcement officers are sometimes required to read Licenses under poor lighting conditions. It is therefore reasonable for the Department to attempt to improve License legibility. Factors which affect the legibility of a License include the quality of the printing on the data card used, the degree of contrast on the data card, the optical-reduction factor in the camera, and the quality of the photographic image produced by the camera and the film. The evidence did not prove that the difference in the size of the License specified in Section 4.8.1 of Rebid II, as amended, and the size suggested by Polaroid will affect the legibility of the License. Although evidence was presented during the final hearing concerning plans of the Department to improve the method in which the data card is printed, Sections 3.18 and 4.6.5 of Rebid II, as amended, specify that the Department's existing and currently used data card is to be used in submitting bids to Rebid II, as amended. These provisions have not been challenged. Legibility will be affected by the extent of the maximum reduction factor allowed. The smaller the maximum reduction factor allowed, the better the legibility will be. Once reduced, the data card must fit into the size specified for the License core. Therefore, the reduction factor specified and the size of the License core must be consistent. In the current License produced in Florida, the data card is reduced by 42 percent from its original size. The License produced in 1978 featured a 33 percent reduction factor. The requirement as to the size of the License core and the maximum 40 percent reduction factor contained in Rebid II, as amended, are inconsistent. Mr. McCaskell conducted a study which indicated that if a 40 percent reduction factor is used there will be a considerable amount of unused space on a License core which measures 1-7/8 inches by 3-1/8 inches. If the size of the License core is reduced to allow a License core measuring 1-3/4 inches by 2-3/4 inches, a data card reduced by 40 percent will not leave unused space. The specification as to the maximum 40 percent reduction factor was included in Rebid II as a compromise between what Polaroid and NBS had informed Mr. McInnis they could produce. It was not based upon any scientific analysis by Mr. McInnis. Although a data card reduced by a maximum 40 percent reduction factor will fit on the smaller License suggested by Polaroid, the legibility of the License will not be improved. If the maximum reduction factor is reduced from 40 percent to 30 percent, however, the legibility of the License will be enhanced. A data card reduced by a maximum reduction factor of 31 percent will fit into the space for the data card specified for a License core of the size specified in Section 4.8.1 of Rebid II, as amended. If the header bar is reduced slightly a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the size specified in Section 4.8.1 of Rebid II, as amended. A data card reduced by a maximum reduction factor of 31 percent will also fit into the space for the data card specified for a License core of the smaller size suggested by Polaroid. If the header bar and the area for the driver's picture are reduced slightly, a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the smaller size suggested by Polaroid. The size specified by the Department in Rebid II, as amended, will not directly affect the goal of improving the legibility of the License. Reducing the maximum reduction factor to 31 percent will improve legibility and will be consistent with the other requirements of Rebid II, as amended, as to the size of the header bar and the size of the photograph of the driver. Allowing the range of sizes in the License core suggested by Polaroid is consistent with a reduction of the maximum reduction factor. Allowing the suggested range of sizes may also result in a cost savings to the Department since Polaroid would be able to produce two Licenses from one sheet of film. The Department's actions with respect to the License core size and the reduction factor have been arbitrary. Reducing the maximum reduction factor and allowing the Polaroid's suggested range of sizes for the License core are more reasonable specifications. Both Polaroid and NBS can bid a License meeting a 31 percent maximum reduction factor requirement and the Polaroid suggested range of License core sizes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department add a paragraph to its invitation to bid informing potential bidders that failure to challenge the specifications of the invitation to bid within the time prescribed in Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003(2)(b), Florida Administrative Code, will constitute a waiver of proceedings under Chapter 120, Florida Statutes. It is further RECOMMENDED that NBS's suggested changes to Rebid II, as amended, concerning the film core material specified in Section 4.8.1 of Rebid II, as amended, and lip-seal lamination specified in Section 4.8.3 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow a maximum reduction factor of 30 percent. It is further RECOMMENDED that Polaroid's suggested changes to Rebid II, as amended, concerning the type of security feature specified in Section 4.8.4 of Rabid II, as amended, and the specification of Section 4.10.4 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow the film core to measure 2-7/8 to 3-1/8 inches wide and 1-3/4 to 1-7/0 inches high. It is further RECOMMENDED that the size of the header bar and the space for the drivers' photograph be modified to accommodate a maximum 30 percent reduction factor and the smaller size License core. DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1125BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in, the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Polaroid's Proposed Findings of Fact Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1. 1. 2. This proposed finding of fact is irrelevant except to the extent that Polaroid and NBS serve about half of the states. See paragraph 2. 3. 103. 4. 104. 5. 105. 6. 4 and 6. 7. 106. 8. 107. 9. 7 and 108. 10. 109. 11. 7. 12. 108. 13. 113. 14. 110. 15. 111. 16. 112. 17. Not supported by the weight of the evidence. 18. 114. 19. 116 and 117. 20-22 116. The portion of proposed finding of fact 22 which begins "but careful ..." is rejected as argument. 23-25. 117. 26. 114. 27. 118. 28-31. 20. 32. 52. 33-36. Hereby accepted. 37-38. Irrelevant. 39. 22-24. 40. 28. 41. 29. 42. 30-31. 43. 32-33. 44. 34-35. The last sentence is not supported by the weight of the evidence. 45. 36. 46. 37 and 40. 47. 40-41. 48. 42. 49. 43. 50. 44. 51. 45-46. 52. 45 and 48-49. 53. 48. 54. Hereby accepted. 55. 56. 49. The fact that "the Department did not approach Polaroid Corporation to determine if Polaroid could temporarily supply driver license systems during the same interim period is irrelevant. Irrelevant. 57. 50. 58. 51. 59-60. 53. 61. 54. 62. 54 and 63. 63. 54. 64-65. 55. 66. Not supported by the weight of the evidence. 67. 56. 68-69. 57. 70-71. 58. 72. 60. 73. 158. 74. 60. 75. 61. 76. 160. 77. Irrelevant. 78. 62. 79. 63. 80. 64. 81. 65. 82. 66. 83. Irrelevant. 84. 67. 85. 70. 86. 68. 87. 69. 88-90. 71. 91. 72. 92. 73. 93. 75. 94. Irrelevant. 95. Hereby accepted. 96. 75. 97. 76. 98-99. 77. 100. 82. 101. 78. 102. 79. 103. 80. 104. Irrelevant. 105. 83. Mr. McInnis was one of the 106. primary technical drafters. 84-85. The last sentence is not 107-108. supported by the weight of the evidence. 84. 109. 86. The last sentence is irrelevant. 110-111. 88. 112. 89. 113. 90. 114. 91-92. 115. 90. 116-117. Irrelevant. 118. 93. 119. 94. 120. 96. 121. 97. 122-123. 98. 124. Not supported by the weight of the evidence. 125-126. 99. 127-132. Not supported by the weight of the evidence. 133-134. 100. Irrelevant. Not supported by the weight of the evidence. 137. 101. 138. Not supported by the weight of the evidence. 139. 101 and 119. 140. 138. 141. 126. 142-144. Statements of law. 145. 128 and 133. 146. 132. 147. 134. 148. 135. 149. 136. 150. 137. 151. 153. 152. 150 and 153. 153. 151. 154. 164-165. 155. 166. 156. 157. 167. The last two sentences are not supported by the weight of the evidence. 168. 158. 169. 159. 170. 160. 161-165. Not supported by the weight of the evidence. Irrelevant. 166. 174-175. 167. Irrelevant. 168. 174. 169. Irrelevant. 170. 180. 171. 179. 172. 181. 173. Not supported by the weight of the evidence. 174-175. 183. 176. 184. 177. Hereby accepted. 178. Not supported by the weight of the evidence. 179. 159. 180. Not supported by the weight of the evidence. NBS's Proposed Findings of Fact 1. 1. 2. 2. The last-sentence is irrelevant. 3. 10-14. 4. 15. The last sentence is not supported by the weight of the evidence. 5. 16-18, 20-21 and 51. 6. 19. 7. 23. 8. 24. 9. 25-27. 10. Not supported by the weight of the evidence. 11. 37. 12. 35. 13. 36. The last sentence is irrelevant. 14. 38-40. 41. The second sentence is uncorroborated hearsay. 47-48. The last sentence is not supported by the weight of the evidence. 46. The last sentence is not supported by the weight of the evidence. 18. 49. 19. 50. 20. 51. 21. 43-44. Polaroid did not request permission to conduct a demonstration Polaroid was requested by the Department. The opinion expressed by Major Keith was the opinion of his office. 22. 53, 61-63, 65-68 and 71. 23. 72 and 74. 24. 73 and 75. 25. 76. 26. 76-77. 27. Irrelevant. 28. 77. 29. 89-90 and 93. 30. 94. 31. 97. 32. 98. 33. 100. 34. 101. 35. 102. 36. 139, 141 and 164. 37. 144. 38. Hereby accepted. 39. 177. 40. 174. 41. 179. 42. 175-176. 43. 175. Hereby accepted. Hereby accepted. 46. 145. 47. 7. Not supported by the weight of the evidence. Irrelevant. Not supported by the weight of the evidence. 51. 147. 52-56. Not supported by the weight of the evidence. 57. Irrelevant. 58. 155. 59. 156. 60. 157. 61. 162. 62-63. 66. 64-65. Irrelevant. 66-67. 74. 68. Not supported by the weight of the evidence. 69. 160. 70. 163. 71. 101 and 119. 72. 119. Not supported by the weight of the evidence. 125. The evidence failed to prove that "there exists virtually no other economical source for a similar paper based instant photographic product." 75. 126. 76-80. Not supported by the weight of the evidence. 81. 134. 82. Irrelevant. 83-86. Not supported by the weight of the evidence. 87. 128. 88. 129. 89. 130. 90. 131. 91. Irrelevant. 92. 133. The last sentence is not supported by the weight of the evidence. 93. 138. 94. 113. 95-96. Irrelevant. 97-102. Not supported by the weight of the evidence, irrelevant or statement of law. The Department's Proposed Findings of Fact 1. 4. 2. 119. 3-5. 120. 6. 121-122. 7. Statement of position. 8. 128. 9. 145. 10. 148-149. 11. 152. 12. 151-152. 13. Hereby accepted. 14. 154. 15. 139 and 144. 16-17. 168. 18. 173. 19. 179. 20. 172-173. 21. 22. 172. The last sentence is not supported by the weight of the evidence. 164. 23. 24. Not supported by the weight of the evidence. 113. 25. Irrelevant. 26. 27. Not supported by the weight of the evidence. 180. 28. 185. 29. 155. 30. 156. 31-32. 74 and 81. 33. 159. 34. 160. 35-38. 161. 39. 163. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch J. Whitney, Esquire General Counsel Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello, French & Madsen Post Office Box 1876 Tallahassee, Florida 32302-1876 Keith C. Tischler, Esquire Parker, Skelding, McVoy & Labasky Post Office Box 669 Tallahassee, Florida 32302 Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490 Sacramento, California 95814
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint, as amended, and, if so, what disciplinary action should be taken.
Findings Of Fact Preliminary matters At all times material hereto, respondent, Eston Mansfield, held Florida teaching certificate number 691581, covering the area of middle grades mathematics, grades 5 through 9. Such certificate expired June 30, 1995. At the time of the incidents at issue, respondent was, from time to time, employed as a substitute teacher by the School Board of Dade County, Florida, and the School Board of Broward County, Florida. Moreover, during such times, respondent was also self-employed, as a professional photographer. The incident in question In or about February 1993, A. E., a fifteen year old female, was referred to respondent, who she understood to be a professional photographer. 2/ At the time, A. E. was entertaining an interest in modeling, and had need for a modeling portfolio. A. E. and respondent spoke by telephone, and respondent agreed to do the photographs for the portfolio, and quoted a price between $1,500 and $2,000. When A. E. told respondent she could not afford the cost, respondent countered by telling her that he was looking for a model to practice some nude photography and that if she would agree to pose for the photographs he would do the photographs for the portfolio at no charge. A. E. agreed to the trade. At the time A. E. spoke with respondent, she was not a student, having "legally withdrawn" from school, was sharing an apartment with her older sister, age 18, and their respective boyfriends. A. E.'s boyfriend at the time was older than A. E., and A. E., although underage, was not a stranger to alcohol. Although A. E. and respondent had no personal contact prior to their telephone conversation, respondent had visited with her sister in the past, in an effort to interest her in a wedding portfolio, and was aware of A. E. and her living arrangements. Respondent was further aware that A. E. was the younger of the two sisters and knew, before the photography session hereinafter discussed, that A. E. was 15 years of age. In February or March, 1993, A. E., together with her friend, Wendy Colvin, went to respondent's home for the anticipated photography session. As described at hearing, respondent's home included an area that was suitably equipped for professional photography and the session, based on the persuasive proof, appears to have been conducted in a professional manner. 3/ Before the session began, respondent offered and A. E. accepted an alcoholic drink to help her "relax". Thereafter, A. E. posed in several sets of lingerie that she had brought for the session, and then posed for a number of nude photographs. Apart from the observation that some of the lingerie A. E. wore was her sister's wedding lingerie, the record is devoid of any descriptive observations from which one could draw any reliable, as opposed to speculative, conclusion as to its character. Likewise, the record is largely devoid of any descriptive observations of the lingerie or nude photographs, such that one cannot draw any reliable, as opposed to speculative, conclusion regarding their character or content. Notably, the photographs were not exhibited or offered at hearing, and only the vaguest of descriptions elicited from the witnesses. In A. E.'s opinion, some of the photographs "were tasteful, some were not." In respondent's opinion, some of the photographs that might be described as "tasteless" did not meet "a professional standard," which he attributed to A. E.'s amateur status and unfamiliarity with proper positioning or posing. 4/ Given the paucity of proof concerning the character or content of the photographs, it cannot be concluded that the photographs, in whole or in part, offended contemporary community standards by predominantly appealing to prurient, shameful or morbid interest, that the photographs were without any serious artistic value, or that the photographs were otherwise obscene, as that term is commonly understood. Moreover, there was no proof offered, by student, teacher, or otherwise, that respondent's practice of nude photography, albeit with a 15-year-old girl, otherwise offended community values or reduced his effectiveness as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be rendered dismissing the charges filed against respondent. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue Did Respondent discriminate against Petitioner in her employment because of a physical handicap?
Findings Of Fact Respondent, Double Envelope Corporation (Double Envelope), is engaged in the manufacturing and printing of envelopes and has a plant in Gainesville, Florida. (Tr. 252) Petitioner, Alicia Hart, became a full-time employee of Double Envelope in Gainesville, Florida in April 1987. (R. Ex. 18) Petitioner worked from April 1987 until July 14, 1989, and during most of that time she held the position of inspector/operator on the second shift in the Open-End Department. (Tr. 57) The Open-End Department manufactures small and large envelopes which are open on one end. (Tr. 198-99) In August 1987, Petitioner viewed a film strip on safety and inspecting of envelopes, and she signed a form reflecting that she had viewed the film and that she understood the importance of safety and production of quality merchandise. (Tr. 62, R. Ex. 14) The film strip presented by Double Envelope is one of several ways inspector/operators learn how to produce and inspect quality envelopes. (Tr. 197) Inspector/operators also learn about their jobs through employee orientation. A memorandum describing the procedures for producing quality envelopes is posted on each envelope making machine. (Tr. 197-98, R. Ex. 6) The memorandum on procedures for inspecting quality envelopes provides in pertinent part as follows: Checking Envelopes When envelope comes off your machine, check your perforations, seal gum, side gum and bottom gum, and envelope fold . . If any of the above checks does not meet your inspection, turn your machine off and ask (R. Ex. 6) your adjuster to check your machine. When running a job, do not close your cartons until you start your 2nd layer on a skid then inspect envelopes again. Petitioner understood that inspection of the envelopes was an important part of her job. (Tr. 60) During her employment, Petitioner worked most of the time in the small open-end (S.O.) department, and was very familiar with the small open-end machines. (Tr. 60) Mr. Durette was foreman of the Open-End Department and was Petitioner's supervisor throughout her employment at Double Envelope. (Tr. 197, 199) Mr. Durette taught the Petitioner the particulars of her job as an inspector/operator, showing her (a) how to fan through the stock that she put on the machine to make it easier for the machine to push envelopes through the machine; (b) how to fan through the envelopes after she picked them up and checked the quality of the envelopes, the gum, the seal, and the perforations; (c) how to pack the envelopes in cartons; and (d) how to pull out and replace any bad envelopes she might find. (Tr. 200) Throughout her employment, Petitioner had problems getting along with various coworkers and supervisors. (Tr. 200- 01, 249, R. Ex. 1-A) On several occasions before July 1988, Mr. Durette verbally counseled Petitioner concerning her attitude and failure to get along with other employees. (Tr. 201, 203) Mr. Durette gave Petitioner a written warning on July 7, 1988, for her failure to follow the instructions of an adjuster. An adjuster adjusted the machine to make quality envelopes. An adjuster was authorized to supervise inspector/operators. (Tr. 201-03, 106, R. Ex. 1-A) In this warning, Mr. Durette informed Petitioner that "next time this may result in a suspension." (R. Ex. 1-A) The July 1988 warning was issued around the time the Petitioner first reported problems with her hands at Double Envelope. The date she reported the problems she was having and the date the report were formalized are not certain. On February 24, 1989, Petitioner reported to work. Shortly thereafter, Petitioner told Mr. Durette that she needed time off from the job right away to take care of a garnishment problem. Mr. Durette informed Petitioner that he needed her to work and denied her permission to leave. Petitioner then requested to see Audrey Weeks, Production Coordination, about leaving work that day and Mr. Durette agreed. (Tr. 55, 67-68, 204-06) Petitioner saw Ms. Weeks that day and advised Ms. Weeks that she needed to go to the courthouse right away to handle a problem with a garnishment. Ms. Weeks advised her that she would have to see Mr. Durette regarding the matter. (Tr. 129) Immediately thereafter, Petitioner went to talk to Vice President and General Manger of the plant, Holt Vaughan. Petitioner asked Mr. Vaughan if she could leave work to go to the courthouse to handle the garnishment. Mr. Vaughan denied Petitioner permission to leave and told her she was needed to work. (Tr. 254, 55) After being told by her supervisor, the production supervisor, and general manager she could not have time off, Petitioner left the plant. Mr. Vaughan, seeing Petitioner leave a few minutes later, told her that if she left, she would have to suffer the consequences. (Tr. 255) Petitioner left the workplace and did not return that day. (Tr. 204) On February 27, 1989, Mr. Durette issued a written notice to Petitioner suspending her for one day, with pay, in accordance with Company policy. (Tr. 204, 255, R. Ex. 1-B) Petitioner was not on light duty status at the time of this suspension. (Tr. 250) After investigation, Plant Manager Wayne Secrist upheld the suspension and issued a typewritten memorandum to Petitioner on March 2, 1989, warning Petitioner that "any further problem whatsoever with Petitioner will result in her dismissal." (R. Ex. 1-C) On March 14, 1989, Mr. Durette issued a written message warning to Petitioner because she left a dirty gum table and paper around and on her machine the previous day. (Tr. 205- 06; R. Ex. 1-D) At the time the March 14, 1989, warning was issued, Petitioner was not on light duty status and had not filed a workers' compensation claim regarding her left wrist. (Tr. 207, 268-69, R. Ex. 24) Petitioner talked to Ms. Weeks around March 15, 1989, about her left wrist and filed a workers' compensation claim that day. (Tr. 268-69) Ms. Weeks referred Petitioner to the Company doctor, Dr. Evans, who in turn referred Petitioner to a hand specialist, Dr. Osborne, at the Ramadan Institute. (Tr. 48-49, 271) Dr. Evans placed Petitioner on light duty status in March 1989, and Dr. Osborne confirmed that status. (Tr. 50, 271- 72) Ms. Weeks, Mr. Vaughan and Mr. Secrist determined what Petitioner's light duty job would be based upon a description of light duty status from their insurance company and a telephone conversation between Ms. Weeks and Dr. Osborne. Petitioner was restricted on the amount of weight she would lift and the size of the envelopes she would handle. (Tr. 256-57, 272) Double Envelope assigned Petitioner to work on a S.O. machine which is slower in speed than other machines, and the lifting required is lighter. The work assigned was consistent with the doctor's limitations. (Tr. 109-10, 208, 256- 57, 272) Petitioner advised Ms. Weeks that she had discussed her situation with Dr. Osborne, and that she had described what she was doing to Dr. Osborne. The Petitioner advised Ms. Weeks that there was no problem with the machine she was running, and that her duties were consistent with the doctor's orders. (Tr. 272) Petitioner advised Mr. Vaughan that the work she was doing on light duty in March 1989 was consistent with what she thought the doctor had requested for light duty. (Tr. 256) Petitioner's condition in 1989 did not interfere with her carrying out the responsibilities of her light duty job and she was able to keep up on the machines. (Tr. 109-10) In April 1989 both Petitioner and another employee refused to work on their machines. (Tr. 215, 256, 264) Mr. Vaughan and Ms. Weeks met with Petitioner on the day she refused to continue working on her machine. Mr. Vaughan asked if Petitioner was having a problem due to her injury. The Petitioner advised Mr. Vaughan that the work she had been assigned was consistent with her restrictions, and she was not having a problem. Mr. Vaughan replied that she should either continue to do this work or see her doctor to get a written statement that she was not able to perform the work for that reflected new duties. Petitioner returned to work. (Tr. 256, 265) On April 5, 1989, Mr. Durette gave Petitioner a written warning advising her that a number of envelopes which she had produced on April 4, 1989, were stuck together in cartons with her signature. (Tr. 208, 212, R. Ex. 1-E) On April 5, 1989, Mr. Durette discovered additional envelopes which she had packed and which were sticking together. Mr. Durette gave her another written warning on April 5, 1989, on this deficiency. (Tr. 211, 213-14, R. Ex. 1-F) Mr. Durette was able to determine that Petitioner had packed the defective envelopes from her signature on the cartons, the job numbers on her time sheet, and the department log with matching job numbers. (Tr. 209, 213) Operator/inspectors were suppose to shut down their machines if their inspections revealed a problem and call an adjuster. The adjuster would fix the machine and the operator would restart the machine. On several occasions prior to May 1, 1989, Mr. Durette talked to Petitioner about her failure to keep her machine running, and her failure to immediately report jams. (Tr. 214-15) On May 1, 1989, Mr. Durette gave a written warning to Petitioner concerning her poor attitude and low production. (Tr. 214, R. Ex. 1-G) On May 2, 1989, Petitioner was examined by Dr. Osborne and she brought back to Ms. Weeks a note from Dr. Osborne releasing her to return to work performing her normal duties with no restrictions. (Tr. 38, 111, R. Ex. 13-B) Several employees complained to Mr. Durette at various times that Petitioner was not coming back from breaks on time and that she was taking more time than was allotted. (Tr. 217) As a result of these complaint, Mr. Durette counseled the Petitioner about returning from breaks and lunch on time. He still received complaints about Petitioner's lateness. (Tr. 218) On May 12, 1989, Petitioner left for her lunch break at approximately 7:00 p.m. and called in sometime during her 30 minute break to advise that she had car problems and would be a little late. Petitioner came back into the plant at 7:45 p.m., but she indicated on her time sheet that she returned at 7:30 p.m. Petitioner was warned by her supervisor about returning to work on time and reporting her time accurately. (Tr. 87, 218, R. Ex. 3) From May 8, 1989, through the date of her discharge, Petitioner did not complain that she was having any problems with her hand or that her wrist was locking up. (Tr. 234, 273-74) On June 13, 1989, Mr. Durette issued a written message warning to Petitioner with regard to her failing to attend four consecutive safety meetings. (Tr. 219, R. Ex. 1-J) On June 19, 1989, at the end of her shift, Petitioner told Mr. Durette she could not come in the following day because she had real estate business. Mr. Durette advised her that she could not take the day off and that he needed her to work and she would have to be there. Petitioner asked if she could make up the time, work another shift, or make up the production some other way, but was denied the time off. (Tr. 94, 222) On June 20, 1989, Petitioner took the day off without calling in, despite Mr. Durette's instructions on the previous day. (Tr. 222) On June 23,1989, Mr. Durette issued a written notice of disciplinary action, warning Petitioner concerning her insubordination and misconduct in failing to show up for work on June 20, 1989. The notice of disciplinary action warned her that this was a final warning and any further violations "will result in your dismissal from Double Envelope." (Tr. 221, R. Ex. 1-K) On July 12, 1989, Petitioner worked from 3:30 p.m. until 11:30 p.m. on an S.O. machine manufacturing open-end photo processing envelopes for Jack Eckerd Corporation on job number 3327295. (Tr. 96-97, R. Ex. 7) The envelopes being manufactured have a flap at the top of the envelope, and a perforation across the end of the flap closure which was a receipt. (Tr. 60) Petitioner's job responsibilities on this job included inspecting the envelopes to ensure that they were satisfactory by looking carefully through the envelopes for the perforation and the "gum line", the area where the gum is placed to seal the flap. (Tr. 165-66, 228). Petitioner was supposed to inspect the envelopes and, as stated above, shut her machine done and notify her supervisor or adjuster immediately if she found any problems. (R. Ex. 6, Tr. 199). When inspecting the envelopes, Petitioner knew that she should pick up a stack of envelopes, thumb through the entire stack making a visual inspection, and look for anything that was out of place or odd. (Tr. 62-63). On July 12, 1989, Petitioner had some problems twice during her shift with her machine jamming, but she did not notice any problems with the perforation of envelopes. The machine was adjusted and restarted. (Tr. 105, 233). On the morning of July 13, 1989, adjusters Charles Wood and Bill Harmon were notified by a first shift employee that there were envelopes from the night before that had not been perforated. (Tr. 143, 167-68). Charles Wood and Bill Harmon then looked back through envelopes completed the prior night on the second shift to determine if there were any bad envelopes that had not been discovered. They found that approximately 2,000 envelopes packed the prior evening were defective in that they had no perforation. (Tr. 14, 168, 224) Messrs. Wood, Harmon and Durette determined from the box numbers and machine logs, and Petitioner's initials on the cartons, that on July 12, 1989, Petitioner had packed the 2,000 envelopes with defective perforations in four cartons. (Tr. 148, 167-68, 224). Petitioner acknowledged she had worked on the boxes of envelopes which contained the defective envelopes. (Tr. 98) Petitioner had not discovered and reported the 2,000 envelopes without proper perforations before leaving her shift on July 12, 1989. Mr. Durette, with the approval of Ms. Weeks and Mr. Vaughan, determined to terminate Petitioner on the basis of her failure to follow instructions concerning inspection of envelopes and her poor work history over the past months. (Tr. 223, 259, 274, R. Ex. 2) At the time of terminating Petitioner, the Company officials involved in the termination decision were not aware that Petitioner had any permanent or temporary disability. The Petitioner had been returned to regular duty. (Tr. 234, 259, 274) No medical evidence exists in the record to establish that Petitioner has ever been permanently disabled. (Tr. 234, 259, 276) No evidence, medical or otherwise, exists in the record to show that Petitioner was permanently or temporarily disabled when she was discharged. (Tr. 234, 259, 274) Petitioner never submitted any information to Double Envelope from the time she returned to normal duties until the time of her termination which would indicate that she was permanently or temporarily disabled. (Tr. 234, 259, 274). Disability ratings were not issued on Petitioner's right hand until after she was terminated from Double Envelope. (Tr. 112-13) According to Petitioner's understanding, she was not diagnosed as having permanent impairment to her left wrist until after her termination from employment at Double Envelope. (Tr. 112-13) Shortly after her termination from Double Envelope, Petitioner understood from Ramandan Hand Institute that she should not return to the type of work she had been doing at Double Envelope. (Tr. 109) As a result, Petitioner has never applied for employment with an envelope manufacturing company since her termination on July 14, 1989. (Tr. 109) On September 5, 1989, Petitioner filed a timely charge of discrimination with the Florida Commission on Human Relations (FCHR). This charge was signed by Petitioner under oath and, according to Petitioner, was accurate at the time. (Tr. 114, R. Ex 18) In her charge of discrimination, Petitioner referred to her handicap as "permanent damage to my left wrist." Petitioner did not mention her right hand or thumb anywhere in her charge of discrimination. (Tr. 115, R. Ex. 18) In her charge of discrimination, Petitioner asserted under oath that "Ms. Vicki Williams, on July 14, 1989, also wasted four boxes of envelopes on job no. 3327295, but was not reprimanded or terminated." (R. Ex. 18) Ms. Williams testified, without any rebuttal, that she did not run four boxes of defective envelopes on that day or any other day. (Tr. 187) Petitioner stated that in 1989 Mr. Durette allegedly referred to Petitioner and Deborah Turbyfield as "goddam cripples' or "goddam invalids." Mr. Durette denied making such a statement. (Tr. 116-17, 190-91, 234) Double Envelope has several employees who have a physical disability of some type including: John Durette (50% disability in left thumb) Doug Milligan (tips of two fingers missing) Betty Martin (cut finger tip off twice) Len Walton (1 leg; blind in one eye) (Tr. 235, 275) Double Envelope has terminated at least three other employees (Jean Robbins, Gail Montgomery, Ellen Vaughan) in recent years for running bad envelopes, where such other employees did not have any handicap or physical disability of which Double Envelope was aware. (Tr. 275) After investigating this matter, the Interim Executive Director of the FCHR issued a Notice of Determination on October 29, 1990, finding that "there is no reasonable cause to believe that an unlawful employment practice has occurred." (R. Ex. 15) After Petitioner filed a Request for Redetermination and arguments were advanced by both parties, the Interim Executive Director of the FCHR concluded that the "initial determination properly found no reasonable cause to believe that an unlawful employment practice occurred." (R. Ex. 16)
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence contained in the record and the demeanor and credibility of the witnesses, it is RECOMMENDED Petitioner's Petition of Relief from Unlawful Employment Practice should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. APPENDIX The Respondent filed a Proposed Recommended Order which contained proposed findings of fact. These proposed findings were read and considered. The following states which findings were adopted, and which were rejected and why: Paragraphs 1-16 Adopted. Paragraph 17 Rejected. Contrary to the most credible evidence. Paragraph 18-20 Adopted. Paragraph 21 Rejected. Irrelevant. Paragraph 22-26 Adopted. Paragraph 27 Although true, the warning in Paragraph 28 is the important thing. Paragraph 28-40 Adopted. Paragraph 41 Rewritten. Paragraph 42-54 Adopted. Paragraph 55 Facts added to Paragraph 54. Paragraph 56-79 Adopted. Paragraph 80 Rejected. Contrary to the most credible evidence. Paragraph 81-84 Adopted. COPIES FURNISHED: Alicia A. Hart, pro se 1037 East 222nd Street Bronx, New York 10469 Robert G. Riegel, Jr., Esquire Coffman, Coleman, Andrews & Grogan, P.A. 2065 Herschel Street Jacksonville, Florida 32203 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent, Stephen Philips Kilmon, is presently licensed as a professional surveyor and mapper, having been issued license number LS5439 on January 26, 1995. On or about November 4, 1994, the Respondent filed an application for licensure as a professional surveyor and mapper on a form provided by the Board of Professional Surveyors and Mappers. In order to be eligible for licensure as a professional surveyor and mapper, the Respondent had to be a high school graduate. The Respondent graduated high school in 1976 and included proof of his graduation with his license application.3 In order to be eligible for licensure as a professional surveyor and mapper, it was not necessary that the Respondent have any formal education beyond graduation from high school. Among other things, under the caption "EDUCATIONAL HISTORY" the application form requested the following information: "Name of School, College, or University Attended," "Year of Graduation," and "Degree." On his application form the Respondent wrote that he had attended the University of Maryland, that he graduated in 1980, and that his degree was "BSCE." At one time the Respondent studied civil engineering at the University of Maryland, but he never obtained a degree in civil engineering from the University of Maryland. During the course of a deposition taken on April 1, 1998, the Respondent described his education formal education following high school as follows: Q. Okay. And what was your major course of study while you were attending the University of Maryland? A. Civil engineering. Q. And did you obtain a degree? A. No, I did not. Q. What years did you attend the University of Maryland? A. I attended the University of Maryland between 1976 and 1979. Q. All right. Whay did you leave school without a degree; was there any particular reason why? A. No particular reason. * * * Q. Okay. What year did you leave the University of Maryland? A. In 1979. * * * Q. Okay. How many credit hours did you accumulate prior to leaving college? A. I don't recall what the final number really was. Q. How many was [sic] required for graduation? A. Because I never graduated, I don't really recall what was required. * * * Q. All right. I'm trying to determine, and perhaps you can help me, did you leave in your sophomore year, junior or senior year? A. It was in my sophomore year. Later, in a letter dated September 30, 2001, the Respondent wrote to the Board of Professional Surveyors and Mappers and explained his education after high school as follows: While being a "Fact" and "Expert" witness for a Plaintiff in Court, it has been brought to my attention by attorneys on our team that my University of Maryland Bachelor of Science Civil Engineering (BSCE) degree had become unaccredited over time due to University administrative circumstances beyond a student's (my) control. When I was at the age of 18, I was severely handicapped with chronic vision disorientation (Lazy Eyes). Following my freshman first semester I underwent major eye surgery to begin to correct my handicap. I transferred from UM, College Park Campus to become enrolled at the University of Maryland Baltimore County (UMBC) Campus in a specialized handicapped program for persons with various disabilities for nearly two and a half years completing my MSCE degree there. Within a few days of my graduation in May of 1979, my degree I received was taken back and held in limbo due to a program administration accreditation error (University Red Tape Error) which went on for years contested by several sets of parents, and by my father on my behalf. At this same time my mother pas[sed] away in a car accident and I left Maryland behind. I moved to Miami in late November of 1979 and began my career in Surveying with Zurwelle-Whittaker on Miami Beach. My father indicated to me in 1991 before he pas[sed] away from liver cancer, that after litigation settled the dispute, my degree was reinstated. After all this time had pas[sed] I never used or mentioned having a degree unaccredited or otherwise, because I knew technically I didn't keep it. Besides[,] my life went on without any need for a degree. In 1994 I applied to obtain a Surveyor and Mapper's license, which does not require a college degree, only a high school diploma. However, on my license application I did write that I received my Bachelor of Science Civil Engineering (BSCE) degree from the University of Maryland, which as I recall, my father said it became reinstated. Well here's an update - it wasn't. And in hindsight I should have checked out my degree status myself, but I didn't. I don't wish to misrepresent my credentials to anyone. Its [sic] hard enough to have done the time in school, and not be rewarded with the credit for it. Which brings me to this conclusion. I have learned over the past 25 years what really matters most. I acquired the discipline and knowledge to successfully open doors in life and move on, without regrets. If you have any further questions or need additional information please do not hesitate to contact me, directly.4 Item 4 of the application form required that the Respondent provide the following: Proof of employment in responsible charge as a photogrammetric mapper in the state for 24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state which maps were prepared by or under the supervision of the applicant using photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map. Item 5 of the application form required that the Respondent provide a sworn affidavit including the following: The name and address of the applicant. Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards. Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards. A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping. In response to the foregoing requirement, the Respondent included information about six specific projects he had worked on while he was employed with Carr Smith Associates. Those specific projects were described as: Palmetto Expressway Improvement Project [From SW 16 St. to SW 2 St.]; Florida Board of Regents [FL Inter. Univ., University Park Campus]; Metro-Dade County, Port of Miami Authority [Port of Miami Landbase Model]; Florida Board of Regents [FL. Inter. Univ., North Miami Campus]; City of Coral Gables, FL. Public Works Dept. [City-Wide GIS]; Broward County Aviation Department [Ft. Lauderdale-Hollywood International Airport GIS Project and North Perry Airport GIS Project]. With regard to all six of the itemized projects mentioned immediately above, the Respondent submitted the maps and the verified, itemized reports "detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map," as required by item 4 of the application form.5 Those maps and reports were sufficient to establish that the six projects described immediately above were all performed under the supervision of the Respondent. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates did not have the equipment necessary to do photogrammetry. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted photogrammetric services to Southern Resource Mapping of Miami, Inc. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted with Southern Resource Mapping of Miami, Inc., for photogrammetric services for the projects described in paragraph 9, above. The fact that these projects were subcontracted to Southern Resource Mapping of Miami, Inc., was disclosed in affidavits submitted with the Respondent's application.6 At all times material to this case, Joseph Bilu has been a certified aerial photogrammetrist, and has been a vice- president of Southern Resource Mapping of Miami, Inc. Joseph Bilu provided photogrammetric mapping services in the name of Southern Resource Mapping of Miami, Inc., on all of the projects itemized in paragraph 8, above. The photogrammetric mapping services provided by Joseph Bilu under his subcontracts with Carr Smith Associates for the projects itemized in paragraph 9, above, were all performed under the supervision of the Respondent. The Respondent was in responsible charge of the photogrammetric mapping projects itemized in paragraph 9, above.7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing in its entirety the Administrative Complaint issued against the Respondent. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 January, 2006.
The Issue The issue is whether Respondent should have qualified Petitioner's proposed television production for Florida's 2005/2006 Entertainment Industry Financial Incentive pursuant to the requirements of Section 288.1254, Florida Statutes (2005).
Findings Of Fact In 2003, the Legislature created Respondent within the Office of the Governor, Office of Tourism, Trade and Economic Development (OTTED). Since that time, Respondent has administered an entertainment industry financial incentive program (the incentive program) subject to specific appropriation. The purpose of the program in part is to encourage the use of Florida as a site for filming and providing production services for motion pictures, made-for-television movies, commercials, and television programs. For fiscal year 2004/2005, the Legislature appropriated $2.45 million for the incentive program. The Legislature set aside $10 million for the incentive program in fiscal year 2005/2006. Petitioner is a Delaware corporation, which is based in Weddington, North Carolina. The corporation has no assets. Ban Mandell is Petitioner's president and only identified corporate officer. Mr. Mandell does not know if the corporation has issued any shares of stock. Since 1996, Petitioner has been the production company for the "The New Home Show" (show/series), which has aired several series on the Public Broadcasting System (PBS) through its sponsor television station, PBS Station WTVI, in Charlotte, North Carolina. The concept of the show is to begin with a vacant lot, to film the construction of a house by licensed builders and tradesmen, and to complete the project with a fully furnished home. In addition to Station WTVI, other sponsors have provided products to Petitioner to use in the construction of houses for prior shows. For example, Owens Corning underwrote a series in Tennessee for an 8,000 square-foot Owens Corning Systems Thinking Home. Additionally PBS underwriters have provided funds to produce shows in the past. Each show or series is a unique production. The filming does not take place on a traditional set, studio, or backlot. Instead, Petitioner films all scenes on location at the construction site. If the project demonstrates how to tile a bathroom, filming takes place during the actual performance of the work by tradesmen, providing the viewer with an understanding of the whole process. It takes longer to film a series than traditional television programs. Filming cannot take place every day because it is ongoing throughout the construction process. It took Petitioner 18 months to film its most recent project. Petitioner's first show was in 1996. The show consisted of 18 episodes about the construction of one home, the "Wedge Plantation," in North Carolina. Mr. Mandell personally advanced some of the money to finance the construction of the house. He and his family now live in the home. In 1997, Petitioner filmed eight episodes in Tennessee about the construction of a home for Owens Corning. This house was sold after its completion. In 1999 and 2000, Petitioner videotaped the construction of two houses in Lake Park, North Carolina. Petitioner filmed 18 episodes about a Victorian home called South Port, and eight episodes about a home called the Empty Nester. In 2004 and 2005, Petitioner filmed eight episodes about the construction of a golf course house in North Carolina. The series about the golf course house is complete except for editing. Excluding the series about the golf course house, Station WTVI has aired the first three series of completed projects. PBS makes each completed series available for distribution nationally by other PBS-member stations that want to include the shows in their programming. Pursuant to a contract between Station WTVI and Petitioner, Station WTVI must be identified as a co-producer on all shows that it sponsors. Station WTVI also requires that all monies from any source that are used to pay for the projects be paid directly to the station. Station WTVI receives and disperses all funds and ensures that all contributors receive the appropriate acknowledgement. Sometime in early June 2005, Respondent notified interested filmmakers regarding policies and procedures that OTTED adopted for the 2005/2006 incentive program. A letter dated June 1, 2005, stated as follows in relevant part: . . . Before you submit the appropriate application, . . . there are a few important things about the process that you must be aware of. The policies and procedures in the following document are the only official policies adopted by the State of Florida pertaining to the Entertainment Industry Financial Incentive Program. There are NO other persons, agents, organizations, financial institutions or businesses who in any way represent the policies of the State of Florida regarding the details of the Entertainment Industry Financial Incentive Program. In an effort to adhere to the new laws pertaining to this incentive and application process, we will only accept completed applications via Federal Express or U.S. Certified Mail. Any other form of delivery will not be accepted and your application will be returned. No applications will be accepted if they are postmarked before June 13, 2005. Applications received before this time and date will be returned. * * * 5. These policies and procedures, along with the application process, are contingent upon House Bill 1129 being signed into law by the Governor. Respondent's 2005 policies and procedures include the following pertinent provisions: POLICIES AND PROCEDURES Definitions: * * * Principal Photography--The phase in production in which all of the moving images are photographed and recorded according to the instructions of the screenplay in preparation for later editorial cutting and assembly. Production Costs--The costs of real, tangible, and intangible property used and services performed in the production, including preproduction and postproduction, of qualified filmed entertainment. Production costs generally include, but are not limited to: Wages, salaries, or other compensation for technical and production crews, directors, producers, and performers who are residents of this state. Expenditures for sound stages, backlots, production editing, digital effects, sound recordings, sets, and set construction. Expenditures for rental equipment, including, but not limited to, cameras and grip or electrical equipment. Expenditures for meals, travel, accommodations, and goods used in producing filmed entertainment that is located and doing business in this state. Qualified Expenditures--Production costs for goods purchased or leased or services purchased, leased, or employed from a resident of this state or a vendor or supplier who is located and doing business in this state, but excluding wages, salaries, or other compensation paid to the two highest-paid employees. Qualified Production--. . . [A] production is not a qualified production if it is determined that the first day of principal photography in this state occurred prior to certification by the Office of Tourism, Trade, and Economic Development (OTTED). * * * The Application Procedure: Qualified Production: Any company engaged in this state in producing filmed entertainment may submit an application to the OFE for the purpose of determining qualification for receipt of reimbursement. The Office of Tourism, Trade and Economic Development (OTTED) shall make the final determination for actual reimbursement through a certification process. Applications received between June 13, 2005, and June 24, 2005 (the "Principal Photography Application Period"), will be placed into one of two queues (defined below), according to principal photography start date. If more than one project in a queue has the same principal photography start date, those projects with the same principal photography start date will also be placed in the queue on a first-come, first-served basis. Applications received between June 27, 2005, and January 31, 2006, will be placed into one of the two queues on a first-come, first-served basis. On February 1, 2006, the remaining funds within both queues will be combined into a single queue and distributed based on a project's principal photography start date. * * * The Decision-Making Process: The decision-making process for designating filmed entertainment as a qualified production will follow the following sequential steps. Completed General Project Overview and Application is received in the OFE and reviewed to ensure all necessary documentation is attached. If the application is not complete, or documents are missing, the OFE will fax a letter to the production company listing the missing information and documents and the application will not be considered for qualification. Project review by the OFE to determine if the production is a qualified production . . . . After the production has been qualified by the OFE, the OFE will notify the OTTED of the applicant's qualification and the amount of reimbursement. After the OTTED has certified the amount of funds for the production, the OFE will notify the applicant of its determination . . . Expenditures made prior to certification by the OTTED will not be considered for reimbursement. A written contract between the production company and the State of Florida will be drafted and fully executed. * * * OFE Evaluation of the General Project Overview and Application: For a qualified production, the OFE will consider the following questions, among others, when making a determination if the production is qualified: a. The Application: Is it completely filled out, signed and dated? Are there further questions that must be asked and answered? Are all of the necessary documents included? * * * c. The Budget: Does the production have the necessary financing in place to begin production on the designated start date? Will the production spend a minimum of $850,000 on qualified expenditures in this state? * * * e. A Completion Bond: i. Will there be a completion bond in place with an industry recognized completion bond company before principal photography begins? If not, does the production company have the necessary financing in place to complete the shooting? * * * Availability of Funds: Annual funding for the Entertainment Industry Financial Incentive Program is subject to legislative appropriation. The State of Florida's performance and obligation to pay under the contract is contingent upon an annual appropriation by the legislature. If and when, the legislature makes funds available, the OFE will consider each project until all of the funds are committed, or June 20, 2006, whichever comes first. If an application is received and is qualified, but no funds are available, the OFE will notify the company in writing within five days. If the qualified company wishes to remain in the queue in the event funds become available in that fiscal year, it must inform the OFE in writing within five days. Disqualification: A qualified production will cease to be qualified if the OFE determines: The principal photography start date: Occurred before funds had been certified by the OTTED to the production company; or Does not start on the day indicated in the Project Overview on applications received between June 13, 2005, and June 24, 2005, for any reason other than an act of God . . . . Mr. Mandell became interested in producing a series of the show in Florida a few years ago. He particularly was interested in telling the story of the vacation home concept as it has been developing in central Florida. Vacation homes are well-known among European tourists who visit central Florida. The concept is not well-known to many Americans. There are approximately 50,000 vacation homes available in the vicinity of Orlando, Florida. Tourists rent the homes on a weekly basis. Instead of staying in one or two hotel rooms, a family can stay in a vacation home with multiple bedrooms, baths, pool, and other amenities. The vacation homes generate tax revenue for Florida because they are subject to hotel tax. In anticipation of potentially coming to Florida, Mr. Mandell signed up for Respondent's periodic e-mail service. Through these e-mails, Mr. Mandell learned about the financial incentive program. He understood from the beginning that there was some uncertainty as to whether the program would go forward. On or about June 8, 2005, Petitioner applied for a Florida sales tax exemption for the entertainment industry. The sales tax exemption application erroneously stated that PBS Station WTVI was its parent company. Asserting that its first day of principal photography would be August 1, 2005, Petitioner asserted that it intended to build four or five homes in Lake County, Florida, for a PBS do-it-yourself show. The sales tax exemption was valid for only 90 days. However, Mr. Mandell believed that building more than one home at a time would make the filming go faster, speeding up the production process by shooting more than once or twice a week. Following Petitioner's submission of the application for the 90-day sales tax exemption, a member of Respondent's staff, Niki Welge, advised Mr. Mandell that the incentive program was going forward. Ms. Welge referred Mr. Mandell to Respondent's website for details. Ms. Welge also informed Mr. Mandell that Respondent would rank applications received during the "Principal Photography Application Period" (between June 13, 2005, and June 24, 2005) based on the "Principal Photography" start date. Based on Mr. Mandell's conversation with Ms. Welge and existing contacts for Florida crew members, Mr. Mandell decided to move Petitioner's "Principal Photography" start date from August 1, 2005, to July 1, 2005. Mr. Mandell also decided to go forward with a much larger project than originally planned. Mr. Mandell decided to build a neighborhood consisting of 395 or 396 vacation homes in Lake County, Florida, with Platinum Properties of Central Florida, Inc. (Platinum Properties), Clermont, Florida, as the builder/developer. The 395 homes were in addition to the four homes in Lake County, Florida, that Petitioner intended to build with Better Built Homes, Inc., Melbourne, Florida, as the contractor. Prior to submission of Petitioner's application, Mr. Mandell reviewed Respondent's Policies and Procedures and Section 288.1254, Florida Statutes (2004), the version of the statute that was available on MyFlorida.com. Mr. Mandell then filled out the application on June 9 and 10, 2005. Petitioner's application indicates that Petitioner intends to film at least 13 episodes in Florida for The New Home Show (500 Series). The application also indicates that Petitioner has already begun preproduction at vacation homes in Polk County, Florida. According to the application, Petitioner intends to film for approximately 52 days, between July 1, 2005, and June 30, 2006, in three Florida counties: Lake, Polk, and Orange. Paragraph 9 of the application requires the applicant to describe its Florida qualified expenditures and to include a total production budget with a breakout of the estimated Florida expenditures. Paragraph 9 of Petitioner's application states as follows in relevant part: Estimated total expenditure on Florida resident wages (excluding the salaries for the two highest paid Florida resident employers): $500,000 Estimated expenditures on Florida lodging: $20,000 Name of hotel(s): Private Vacation Homes Total number of room nights: 200 [the application skips subsection c] Estimated expenditures on Florida set construction: $10,500,000 Estimated expenditures on purchase or rent for real and personal property: $17,000,000 Estimated expenditures on other services rendered by Florida companies: $100,000 Please list the other services: Misc. Construction Services * * * h) Total estimated qualified Florida expenditures: $28,120,000 According to the application, Petitioner intended to spend $500,000 on Florida resident wages. Mr. Mandell based this figure on building just 50 homes and spending at least $10,000 in labor for each home. Petitioner projected that it would spend $20,000 on Florida lodging. This figure covered 200 nights in hotels and vacation homes. Petitioner anticipates spending $10,500,000 on set construction. Mr. Mandell based this figure on the cost of constructing 50 houses. A set is traditionally a temporary structure. Petitioner will not have a set. Instead, Petitioner is proposing to build over 300 homes to be sold as permanent, fixed structures. Petitioner estimates that it will spend $17,000,000 for the purchase or rent of real or personal property. According to Mr. Mandell, this figure represents the cost of the acreage at the "Platinum" site, plus the cost of the infrastructure. However, the purchase of real estate and the construction of infrastructure are not related to the television episodes that Petitioner proposes to film. In any event, all of the lots are already sold and the buyers have contracted for the construction of homes. The last estimate was $100,000 for other services rendered by Florida companies. However, Mr. Mandell did not have anything specific in mind. The general project overview and application included the following admonition: IMPORTANT NOTE: If the following documents are not submitted with your application your application will not be considered complete: Script Budget Production/Shooting Schedule Proof of Financing Your application will not be considered for qualification and will be returned if the requested documents are not attached. Mr. Mandell attached a proposed budget to Petitioner's application. The proposed budget was written in narrative form and states as follows in pertinent part: The New Home Show will be responsible for over $20,000,000 in expenditures within in Florida from July 01, 2005, through June 30, 2006. Construction of homes and neighborhoods is always our biggest expense representing over 80% of the total expenditures. . . . We will start with four homes built by Better Built Homes, Inc. The budget for these four homes will be over $1,000,000. The homes will be built in an established neighborhood that the producer has located four vacant lots in. These homes will be finished during December 2005. In September 2005, we will start working with our 2nd builder/developer, which is Platinum Properties, Inc. We are in the process of contracting for several homes with Platinum. The expenditures for these homes will be over $15,000,000. * * * In the past, our funding comes from five different areas for these projects. Those areas are: Producer's advance PBS underwriters Builder Developer State Incentives The PBS Underwriter funds and the State Incentive are important funds for The New Home Show because they do not require re- payment. All of the other categories are loans that are repaid from the proceeds from the sale of the homes that we build. Our PBS presenting station is WTVI in Charlotte. All funds for underwriters as well as state incentives must be paid to PBS station WTVI. The producer cannot receive these funds. WTVI is the co-producer of The New Home Show on PBS and approves all budgets and disburses all funds regulated by PBS. PBS has very strict rules and regulations regarding the funding of all PBS shows including The New Home Show and we adhere to those rules and regulations. In addition to the budget, Mr. Mandell prepared a production/shooting schedule to be attached to the application, along with the following: (a) an undated letter from the Director of PBS PLUS and PBS SELECT describing PBS's distribution process and the importance of PBS's underwriting guidelines in very general terms; (b) an undated letter from an advertising agency; (c) a copy of a script from a prior show; and (d) seven pages of PBS's promotional material for the show's 2005 project about the golf course home. In the very early morning hours of June 10, 2005, Mr. Mandell realized that the package of material was in excess of 13 ounces, and that it would not fit in a regular envelope. He decided to send it to Respondent by U.S. Certified Mail, no return receipt requested, in a heavy-duty priority mail envelope. Mr. Mandell uses an Internet postage service, which is the equivalent of having a postage meter. At 3:31 a.m. on June 10, 2005, Mr. Mandel purchased on-line postage in the amount of $6.15 for priority mail, flat-rate delivery, certified, with a ship date of June 13, 2005, on the shipping label. He did not request or pay an additional fee for a "green card" return receipt. The Internet postage service provided Mr. Mandell with a Customer Online Label Record, showing that the label was printed on June 10, 2005, with a June 13, 2005, ship date. The instructions from the Internet postage service contain the following request, "Please use this shipping label on the 'ship date.'" During the hearing, Mr. Mandell stated that he could have printed the shipping label with any date between June 10, 2005, and June 17, 2005. Respondent's policies and procedures clearly require Respondent's staff to determine whether an applicant has the necessary financing in place to begin production on the designated start date and to complete shooting. The policies and procedures do not explain what documents will meet the "proof of financing" requirement. To answer his questions in this regard, Mr. Mandell called Ms. Welge. On June 10, 2005, Mr. Mandell advised Ms. Welge that the show would be financed through construction loans. He explained that Petitioner could not provide Respondent with a bank statement showing a sum of money in a bank account because construction loans do not operate in that manner. A borrower does not retrieve construction loan funds from the lender until the builder needs them. Financial institutions loaning construction funds do not escrow the entire sum, but provide funds on a drawdown basis, based on percentage of completion. After speaking to Ms. Welge, Mr. Mandell sent her an e-mail on Friday, June 10, 2005, at 4:06 p.m. The e-mail inquired whether a letter from the real estate company that was financing the show would satisfy the "proof of financing" requirement. Petitioner's June 10, 2005, e-mail included a draft of a letter allegedly from Platinum Properties, identified only as a Florida real estate developer. The proposed letter stated as follows in relevant part: . . . Subject to timing and construction issues, we look forward to working with The New Home Show on this project. The New Homes Show's project is the creation of an entire vacation home neighborhood in central Florida. If we are able to go forward with The New Home Show on this project, it will be funded with a combination of bank and trade lines, which Platinum Properties utilizes on a regular basis. We have assured the producers of The New Home Show that we have adequate credit lines to cover any and all construction on this project. We expect the cost of this project will be $ of which $ is expected to be spent between 07/01/05 and 06/30/06. Upon receiving Mr. Mandell's e-mail, Ms. Welge shared the proposed letter with others on Respondent's staff. First, she sent it to Scott Fennell, OTTED's Deputy Director, who was providing administrative leadership to Respondent's staff during a vacancy in the position of Film Commissioner. Ms. Welge sent the e-mail to Mr. Fennell on Friday, June 10, 2005, at 4:11 p.m. Mr. Fennell did not immediately respond to Ms. Welge's inquiry about the proposed "proof of financing" letter. On June 10, 2005, Ms. Welge also discussed Petitioner's proposed letter regarding "proof of financing" from Platinum Properties with Susan Simms, Respondent's Los Angeles Liaison. Ms. Welge then contacted Mr. Mandell, advising him that the proposed letter was not sufficient because it contained contingencies. Later in the evening on June 10, 2005, Mr. Mandell contacted Danial Lambdin from Better Built Homes, Inc. During a telephone conversation, Mr. Mandell and Mr. Lambdin, drafted the unsigned, undated "proof of financing" letter that Petitioner ultimately submitted with its application. The letter states as follows in pertinent part: This letter confirms that you have contracted for the construction of four (4) single family vacation homes in Lake County, Florida. I am pleased to be involved with The New Home Show and am excited about working with you. I can confirm that I have an adequate line of credit to complete these homes for you. My Bank is Riverside National Bank at 417 First Ave., Indialantic, FL 32903. My primary contact is Monica Silveria. Their phone number is 321-725-7200. Mr. Mandell typed the letter addressed to himself in Weddington, North Carolina, with the address of Better Built Homes, Inc., Melbourne, Florida, as the letterhead. Very late on Friday, June 10, 2005, or very early on Saturday, June 11, 2005, Mr. Mandell completed the application form and the preparation of all attachments. He placed all of the documents in the priority mail envelope and attached the prepaid certified mail shipping label with the predated ship date. Mr. Mandell then dropped the envelop in an outgoing "mail tote" at his home. Mr. Mandell does not know when the U.S. Post Office received the application and its attachments. Someone at his home takes the mail tote to the post office in Charlotte, North Carolina, every day. The U.S. Post Office delivered the application and its attachments to the state's off-site mail-screening facility on Monday, June 13, 2005, at 3:43 a.m. On Monday, June 13, 2005, at 6:18 a.m., Mr. Fennell answered Ms. Welge's inquiry about the sufficiency of Petitioner's proposed letter regarding "proof of financing" from Platinum Properties. Mr. Fennell responded that "[t]his seems a bit light, but I don't know what typically passes for 'proof of financing' in the film world." On Monday, June 13, 2005, at 9:43 a.m., Ms. Simms responded by e-mail to Mr. Fennell regarding Petitioner's proposed letter regarding "proof of financing" from Platinum Properties. Ms. Simms stated that the contingencies in the proposed letter were potential deal-killers, and that Ms. Welge was able to let Petitioner know on Friday that this was not acceptable as proof of financing. Respondent received the application on Monday, June 13, 2005, at 3:29 p.m. Later that day at 6:21 p.m., Respondent faxed Petitioner a letter, notifying Mr. Mandell that Petitioner did not qualify for the incentive program for the following two reasons: (a) The application was postmarked on June 11, 2005; and (b) The application did not contain any documents containing proof of financing. Respondent sent this letter without contacting Better Built Homes, Inc., or its financial institution. Following receipt of Respondent's June 13, 2005, denial letter, Mr. Mandell contacted Raquel Cisneros, another member of Respondent's staff. Ms. Cisneros and Ms. Welge were the only staff members involved in reviewing Petitioner's application on June 13, 2005. Mr. Fennell signed the June 13, 2005, denial letter but did not review the application. Mr. Mandell explained to Ms. Cisneros that the application was not postmarked on June 11, 2005. Ms. Cisneros admitted during the hearing that the denial letter did not have a postmark of June 11, 2005. Mr. Mandell also inquired of Ms. Cisneros why the June 13, 2005, denial letter stated that the application contained no documents to demonstrate "proof of financing," when the Better Built Homes, Inc., letter had been attached to the application. Ms. Cisneros advised Mr. Mandell that the Better Built Homes, Inc. letter was deficient because it did not contain an amount of financing. Mr. Mandell was unable to obtain an extension of time for Petitioner to serve an "election of rights." Therefore, Mr. Mandell filed an "election of rights" form with Respondent on June 16, 2005. Respondent's June 13, 2005, denial letter provided Petitioner with the opportunity to provide Respondent with additional documents. On June 17, 2005, Petitioner took advantage of that opportunity by submitting a letter dated June 17, 2005, from Platinum Properties. The letter states as follows in pertinent part: We are looking forward to this venture of together building 395 Vacation homes in Lake County with the support, cooperation and abilities that "The New Home Show" brings to the project. Attached you will find the Lender Commitment to get started on the Millbrook Manor Project from AmBanc Commercial Lending Services. Lawrence M. Maloney signed the June 17, 2005, "proof of financing" letter as president of Platinum Properties. Attached to Mr. Maloney's letter was the first page of a Conditional Commitment from AmBanc Commercial Lending Services (AmBanc), Saint Charles, Missouri. The AmBanc Conditional Commitment states that Millbrook Manor/Larry Maloney (Borrower) has executed the document and requested financing in connection with a project described therein. The Conditional Commitment also states that the project has been conditionally approved to receive financing in the maximum principal amount of $15,000,000. The single-page Conditional Commitment does not contain a description of Millbrook Manor. Petitioner did not hear further from Respondent until Petitioner received a second denial letter on June 24, 2005, the last day of the initial two-week window for applications. Respondent based its second denial of Petitioner's application on the following reasons: The submitted budget does not distinguish the production costs as defined in Section 288.1254(2)(b) of the Florida Statutes. The submitted budget does not contain an adequate breakout of the estimated Florida expenditures as opposed to overall project expenditures as described on page five of the General Project Overview and Application. Designated recipients of state incentives must be party to the application and subsequent contractual agreements. Your application states, 'All funds for underwriters as well as state incentives must be paid to PBS station WTVI. The producer cannot receive these funds.' There is inadequate evidence that the application was sent via FedEX or U.S. Certified mail as required on page one (1) of the Entertainment Industry Financial Incentive Policies and Procedures. 'Any other form of delivery will not be accepted and your application will be returned.' On June 27, 2005, Petitioner submitted its second "election of rights" form. Petitioner also provided Respondent with its second statement of disputed facts. Respondent anticipated that it would receive some applications on June 13, 2005, by Federal Express or Certified U.S. Mail by overnight or same-day delivery service. Respondent's staff included the requirements that no applications would be accepted if they were postmarked before June 13, 2005, and only then if they were sent by Federal Express or U.S. Certified Mail in an effort to ensure a fairer process for evaluating the applications received during the critical first two-week principal photography application period. However, the policies and procedures do not require that the applications be mailed on or after June 13, 2005. In the instant application process, Respondent approved at least one other application that Respondent received on June 13, 2005. As to the requirement for "proof of financing," at least one other approved applicant (Britt Allcroft Productions/Britt Allcroft) contained an unsigned letter from a third party, which contained a contingent intent to "assist" in obtaining financing for the production if it was able to obtain $2 million from the incentive program. For this application, Respondent's staff engaged in a telephone conference call with the applicant, obtaining verbal assurances that the letter from the third party constituted a promise to provide financing for the remainder of the production not covered by the other more specific non-contingent promises of financing and licensing agreements. Additionally, the Britt Allcroft application indicated that a completion bond was in place to cover any shortfall in financing, guaranteeing that the production would be completed. Petitioner's application did not contain a completion bond. Another approved applicant (Rolling Films Company) provided Respondent with two contingent letters from third parties, indicating their intent to provide partial financing for the production only if the remaining funds were obtained by a date certain. That application also included a letter from the applicant, indicating the applicant's intent to finance the production for any amount not covered by the third parties. Petitioner's application refers to the funding of prior shows as including producer's advance and PBS underwriters. It does not state that Petitioner agreed in this case to fund the show over and above the amount to be financed by Better Built Homes, Inc., in the amount of $1,000,000 for four homes or the $15,000,000 that Platinum Properties promised to provide for the construction of 395 homes. Additionally, there is no persuasive evidence that Mr. Mandell gave Respondent verbal assurances that Petitioner or PBS intended to fund any shortfall in funds to complete the show, which has projected total production costs in excess of $28,000,000. The letter from PBS Plus & PBS Select agrees to assist in Petitioner's effort to fund the show but does not say how much funding Petitioner could anticipate from PBS underwriters. It is obvious that Respondent's staff is confused about the "proof of financing" requirement. For example, Ms. Cisneros testified in deposition that an applicant only needed to show financing in place for one-half of its total production costs. During the hearing, Ms. Cisneros testified that an application had to show "proof of financing" all of its production costs. Ms. Welge testified in deposition that an applicant had to demonstrate "proof of financing" for its Florida expenditures. Ms. Simms testified that an applicant had to establish "proof of financing" for the entire production budget. Mr. Fennell freely admits that he does not know what constitutes "proof of financing" for an entertainment production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of October, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 October, 2005. COPIES FURNISHED: Pamella Dana, Director Office of Tourism, Trade, and Economic Development The Capitol, Suite 1902 Tallahassee, Florida 32399-0001 Susan Albershardt, Commissioner Office of Film and Entertainment The Capitol, Suite 202 Tallahassee, Florida 32399-0001 S. Elysha Luken, Esquire Smith, Currie & Hancock, LLP 1004 DeSoto Park Drive Tallahassee, Florida 32301 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 1 Tallahassee, Florida 32399-1050 Ted Bonanno, Esquire Office of the Governor The Capitol, Suite 2001 401 South Monroe Street Tallahassee, Florida 32399-0001
