The Issue Whether Respondent's proposed decision to award a contract to Florida Youth Academy, Inc., pursuant to Request for Proposals No. F4G01, is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On June 19, 2001, the Department issued and advertised RFP No. F4G01 for the design, implementation, and operation of a moderate risk residential program with a daily capacity of 30 youthful female offenders who have been committed to the Department after having been assessed and classified as a medium risk to public safety. This was an on-going program, and PEMHS was the incumbent contractor. PEMHS and FYA submitted proposals, which were opened on July 24, 2001. Three qualified agency employees, Mary Mills, Nicholas Lefrancois, and Jennifer Gallman, were given the assignment of evaluating the proposals in accordance with the requirements of the RFP and an evaluation score sheet providing evaluation and scoring criteria. The evaluators worked separately and returned their completed score sheets to Genanne Wilson, the contract administrator who developed the RFP. Ms. Wilson tabulated the scores. On August 31, 2001, the Department posted the tabulations for the RFP, recommending the contract be awarded to FYA. FYA received 328 points, and PEMHS received 288 points. FYA's score was corrected to 303 points when it was discovered that Ms. Wilson had applied an incorrect weighting factor to the points awarded FYA for CMBE participation. The correction did not affect the outcome of the process. PEMHS filed a formal written protest on September 14, 2001, and an amended formal written protest on October 19, 2001. Section L of the RFP set forth the proposal award criteria. Subsection L.1 described the RFP's sole "Fatal Item" as follows: Fatal Item A proposal with a "no" response to the following question shall be rejected without further consideration. Did the Offeror submit an original, signed State of Florida, Request for Proposal, Contractual Services Acknowledgment Form (PUR 7033)? _____ Yes No If the above item is marked "NO" the evaluation of this proposal will STOP! The referenced Form PUR 7033 is prescribed by the Department of Management Services, Division of Purchasing, for inclusion in all agency RFPs. Rule 60A-1.002(7)(c), Florida Administrative Code. The form lists 17 separate General Conditions applicable to all contracts, provides potential vendors with information as to posting of proposal tabulations, and, most importantly, provides space for a manual signature by an authorized representative of the prospective vendor, stating the vendor's assent to the following statement: I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a Proposal for the same services, supplies or equipment and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a Proposal to an agency for the State of Florida, the Proposer offers and agrees that if the Proposal is accepted, the Proposer will convey, sell, assign or transfer to the State of Florida, all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Antitrust Laws of the United States and the State of Florida for the price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the Proposer. The vendor's manual signature on Form PUR 7033 binds the vendor to the terms of its proposal, should it prevail at the end of the evaluation process. The RFP was made available to vendors via download from the Department's Internet web page. The web page allowed the downloading of the Form PUR 7033, but also allowed the downloading of a form similar but not identical to Form PUR 7033. This second form included the language quoted above binding the vendor to its proposal and the space for the manual signature assenting to those terms, but did not include the 17 General Conditions found on the Form PUR 7033. The proposal submitted by FYA employed the second form, not the Form PUR 7033. It included the manual signature of Dr. Devyani Desai, the president and chief executive officer of FYA, indisputably a person authorized to bind FYA to its proposal. PEMHS' protest contends that, given the strict language of the "Fatal Item" RFP term, FYA's proposal should have been rejected out of hand for failure to include the mandatory Form PUR 7033. Genanne Wilson, the contract administrator, was the person charged with deciding whether the FYA proposal should be rejected. She consulted a Department attorney, who advised her that the second form was acceptable and met the criterion for submission of a Form PUR 7033. Based on that advice, Ms. Wilson distributed the FYA proposal to the three evaluators for scoring. The evaluators' score sheets contained a space calling for them to confirm the presence of the Form PUR 7033, but the testimony at the hearing established that the evaluators relied on Ms. Wilson for that information. Mr. Lefrancois testified that he assumed he would not have received the proposals for evaluation at all had they not contained the Form PUR 7033. The seventeen General Conditions set forth on Form PUR 7033 are commonly referred to as the "boilerplate" language included in any contract issued pursuant to an RFP. They include the terms of submission and opening of proposals, bid protest procedures, terms of invoicing and payment, conflict of interest notices, public records requirements, and contractual restrictions regarding assignment, default, advertising, liability, and cancellation. All of the substantive areas of the General Conditions were set forth in substance, if not precisely the same form, within the RFP itself. While pressing its claim that the literal language of the RFP should apply to disqualify FYA's proposal, PEMHS offered no evidence that FYA gained any competitive advantage by submitting the alternative form that it downloaded from the Department's own web site. No party contended that the submission of the alternative form would release FYA from any of the General Conditions. The Department has modified Form PUR 7033 to include blank signature spaces to be signed in the event the bidder enters into a contract with the Department. PEMHS argued that FYA's failure to include the modified Form PUR 7033 meant that FYA and the Department would be unable to finalize the contract by signature. PEMHS offered no statutory or rule citation that would require the contract to be executed on the modified Form PUR 7033, or that would prohibit the Department from drafting a separate document for the parties to sign in execution of their contract. Greg Chown, the Department's director of contracts, testified that the lack of a signature page in the bid documents would not prevent the Department from subsequently entering into a contract with a successful bidder. In summary, FYA filled out and submitted a form provided by the Department. The form bound FYA to its proposal just as the Form PUR 7033 bound PEMHS to its proposal. FYA gained no competitive advantage by submitting the alternative form. The RFP labeled submission of the Form PUR 7033 a "Fatal Item," but the clear intent of this requirement was to ensure a firm commitment by the vendor, not to trap an unwary bidder who inadvertently downloaded the alternative form from the Department's own web page. The alternative form signed by FYA's president complied with the substance of the "Fatal Item" requirement. In view of all the evidence, FYA's failure to submit a Form PUR 7033 was at most a minor irregularity, properly waived by the Department in the interest of preserving competition in a situation in which only two proposals were received. Section K.3.3 of the RFP provided that the bidder must present "a letter of intent to enter into local interagency agreements required in program objectives: submit cooperative agreement(s) or contract(s) with local school districts describing the manner in which education services shall be provided in performance of this contract." PEMHS contended that one evaluator, Mr. Lefrancois, awarded FYA a "satisfactory" score of three points for this item despite the fact that FYA did not submit the required cooperative agreement or contract.1 In response to Section K.3.3, FYA submitted a letter from Frank Potjunas, the supervisor of dropout prevention services for Pinellas County Schools. The letter, addressed to FYA's president, stated: It has come to my attention that you are applying to the Department of Juvenile Justice to provide a 30 bed residential program for moderate risk girls at your Largo facility. As a Pinellas County School administrator and a member of Florida Youth Academy's Advisory Council, I have spent many days at your program. I have worked closely with the FYA administration and staff and I am aware of the services and care you provide to at-risk youth. I support your application, and if I can be of any further help please let me know. PEMHS contended that the above letter did not constitute either a letter of intent or an actual contract as contemplated by Section K.3.3 of the RFP, and that Mr. Lefrancois therefore erred in awarding FYA three points for this item. PEMHS also pointed out that evaluator Mary Mills agreed that the FYA response was inadequate and that she awarded FYA only two points for this item. The third evaluator, Jennifer Gallman, also awarded FYA three points for this item. She testified that a cooperative agreement signed by all parties would be an ideal submission, but that only the incumbent bidder can realistically be expected to have such an agreement in place. A bidder who does not enjoy the advantage of incumbency should demonstrate that it has made contacts within the community and enlisted support for its prospective program. Ms. Gallman was satisfied that the letter quoted above satisfied Section K.3.3 when read in conjunction with its accompanying text in the FYA proposal: Florida Youth Academy intends to modify existing cooperative agreement [sic] with the Pinellas County School Board to provide onsite dropout prevention programming for these additional beds. There will be one classroom for every 19 youth. A letter of intent from Pinellas County School System is included in this submittal. In summary, the issue raised by PEMHS regarding Section K.3.3 amounts to no more than a minor difference of opinion among the evaluators. Two of the evaluators found FYA's response "adequate" and awarded three points. One of the evaluators found FYA's response "poor" and awarded two points. Either opinion is rational and defensible. Nothing in the FYA response to Section K.3.3 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. Section K.4 of the RFP, entitled "Organizational Capability," required the bidder to submit seven items: An organization chart identifying relationships between dedicated program staff and corporate staff, along with a narrative detailing the capacity of program staff to accomplish program objectives. A synopsis of corporate qualifications indicating ability to manage and meet performance objectives of the proposed program, including copies of corporate documents. A plan to illustrate adequate internal administrative review and monitoring services to assure performance for the program. A resume for each professional staff member to include name, position titles, certifications and qualifications of those providing service. A staffing plan to include name, position titles, and weekly hours allocated to ensure quality service delivery. Narrative description that outlines the arrangements that will be in existence at the time of contract award to rent, purchase or otherwise acquire the needed facilities, equipment or other resources required to perform the contract. Narrative outlining the Offeror's ability to perform the contractual services taking into consideration any existing contracts with the Department, other state agencies or any other agency in which the Offeror has entered into a contractual relationship.2 PEMHS contended that FYA's proposal did not address items 3 and 5 of Section K.4, but that two of the evaluators nonetheless awarded FYA an "adequate" score of three points for this section, while the third evaluator awarded a "poor" score of two points. While FYA's proposal did not separately set out the "plans" referenced in items 3 and 5, a fair reading of the proposal as a whole could lead a rational evaluator to conclude that FYA addressed the substance of those items. As with the dispute over the scoring of Section K.3.3, this issue involves a minor difference of opinion among the evaluators as to the adequacy of FYA's response. Two of the evaluators, judging the proposal in its entirety, determined that FYA adequately addressed the requirements of Section K.4. One evaluator disagreed, finding the response "poor." Either opinion is rational and defensible. Nothing in the FYA response to Section K.4 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. PEMHS complained that evaluator Mary Mills changed her score for two items in her evaluation of PEMHS' proposal. The evidence established that in one instance, Ms. Mills lowered the score from three points to two. In the other instance, Ms. Mills raised the score from two points to three. The evidence further established that Ms. Mills made these changes on her own, prior to submitting her completed evaluation to Ms. Wilson. In each instance, her completed review of the entire PEMHS proposal caused Ms. Mills to reconsider the score she had preliminarily awarded. PEMHS failed to establish that Ms. Mills did anything inconsistent with the duties of a conscientious evaluator. Finally, PEMHS alleged that FYA submitted false information concerning its past performance. Section K.4.1 of the RFP set forth the requirement for documentation of past performance: The Offeror shall submit documentation to support the following: An established history of program implementation within the fiscal constraints of any previous contracts. Achieved measurable results in educational achievements by participants. Satisfactory or higher ratings in a similar program Quality Assurance Evaluation. Involvement by the community in which the program is located indicating the community's support for the continuation of the program, such as local boards, volunteers, local financial or in-kind support, and support by local governmental organizations. Any documentation to support the program's recidivism rates for clients served. The corresponding section of the score sheet provided a possible five points for each of the five aspects of past performance listed in Section K.4, for a possible total of 25 points. Each of the evaluators awarded FYA an "adequate" score of three points for each of the items, except for the item corresponding to "satisfactory or higher ratings in a similar program Quality Assurance Evaluation." For this item, Mr. Lefrancois and Ms. Gallman awarded FYA a "very good" score of four points. Each of them noted that the superior rating on this item was based on FYA's having operated other programs that had achieved "deemed" status, the highest rating available under Quality Assurance Evaluations conducted by the Department. PEMHS alleged that the experience claimed by FYA in its proposal is actually that of another company, Florida Health Facilities, L.P., the assets of which FYA acquired in 2000. PEMHS claims that it was misleading, if not actually false, for FYA to claim credit for accomplishments achieved prior to 2000, and that the evaluators' crediting FYA with those accomplishments fatally undermined the integrity of the procurement process. Contrary to PEMHS' implication, FYA's proposal made no effort to disguise the facts. It stated, in pertinent part: Dr. Devyani N. Desai is the President & CEO of Florida Youth Academy, Inc., which was formed in September 2000 to acquire Florida Health Facilities' business and property. (p. 36) * * * Florida Youth Academy operates 132 beds at the Largo facility, which has received deemed status every year since 1998. It also leases Wilson Youth Academy facility at Land O'Lakes of 32 moderate risk beds. This facility has also received deemed status since 1999. Through the change of ownership FYA has retained all the key management personnel. (p. 37) * * * As noted in the Organizational Capability section of this proposal, FYA programs formerly owned and operated by Florida Health Facilities, L.P., has been [sic] a proven provider of female and female [sic] services for the State, and also the Circuit 6 service area. Along with general program implementation, Florida Youth Academy has also been successful in maintaining financial stability and utilizing the per diem dollars within the constraints of the contract. The formalized report of the audit for year 2000 will be made available upon request. Examples of FYA's ability to provide quality program [sic] is outlined below: FYA currently operates four treatment programs, with varying levels of care. The programs consist of 96 High Risk, 18 Moderate Risk, 18 Low Risk and additional 32 Moderate Risk program [sic] located in another county. Three of the four residential commitment programs have received excellent quality Assurance rating with deemed status results for a consecutive two-year period. (p. 37-38) * * * The facilities have received five year's [sic] of Quality Assurance surveying. Each year ongoing improvements have been evident through increasing scores and achievement of deemed status ratings. Since program development, all levels of care have been proven to be effective at implementing which [sic] meet and exceed QA standards. In the most recent survey of 2000, all the programs achieved and/or maintained deemed status reporting . . . . (p. 38) * * * The current programs at the facility of Florida Youth Academy were previously owned and operated by Florida Health Facilities, L.P. The programs have been operated consistently through change of ownership. The recidivism rate at FYA is below average for comparable programs. The most recent experience is 28% and 30% for High Risk and Moderate Risk programs respectively. (p. 38) PEMHS' implication that FYA submitted false information is unfounded. As the quoted examples from its proposal indicate, FYA directly stated that it had acquired the assets of Florida Health Facilities in 2000, and emphasized that it had made strong efforts to maintain continuity of personnel and services during the transition. PEMHS offered no evidence to document that FYA has failed to maintain the documented quality of the "deemed" facilities it now owns. It was not arbitrary, capricious, or contrary to competition for the evaluators to accept FYA's representations as to the historical and continuing quality of the programs it acquired, absent any evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a moderate risk residential program in Pinellas County for 30 female offenders, pursuant to RFP No. F4G01, to Florida Youth Academy, Inc., and dismissing the protest of Personal Enrichment Through Medical Services, Inc. DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 29th day of November, 2001.
The Issue At issue in this proceeding is whether Petitioner's application for a license to operate an Assisted Living Facility should be approved.
Findings Of Fact Petitioner's application and the Agency's denial On or about September 5, 1997, Petitioner, Gwendolyn Whittingham, submitted an application to Respondent, Agency for Health Care Administration (Agency), for initial licensure of a 4-bed Assisted Living Facility (ALF) to be known as Gwen's Heavenly Resort, and to be located at 15560 Northwest 26th Avenue, Opa Locka, Florida. Respondent was named as the owner and proposed administrator. Pertinent to this case, item VIIA on the application, entitled "Criminal Abuse History," required that Petitioner answer yes or no to the following question by checking the appropriate box: Has any owner, administrator, partner, or director ever been arrested for -- or convicted of-- a crime involving injury to persons, or involving financial or business management (e.g. assault, battery, embezzlement, or fraud)? The question further provided: If the answer . . . is "YES" attach a separate letter of explanation stating the charges, dates of arrest/conviction, and disposition for each incident. Check will be made for each applicant. Petitioner did not check either the "YES" box or the "NO" box, but wrote in the words "No Injury." Also pertinent to this case, item VIII of the application provided the following "application checklist" for an initial licensure application: Are all sections on this application completed? Is the application signed & notarized below? Completed Attachment A - Statement of Operations? Completed Attachment B - Statement of Assets & Liabilities? Completed Attachment C - Zoning Certificate? Have you attached Proof of Business Liability Insurance? Have you submitted the correct fee? The check list included the following cautionary statement: Please note that your application may be denied for failure to submit the documentation required above. Item IX of the application called for the signature of the owner or administrator, and that the application be notarized. The following affirmation was required: The undersigned hereby swears (or affirms) that the statements in this application, and its attachments, are true and correct and that to the best of my knowledge and belief all persons in ownership or employment are of good moral character, and that the ownership possesses sufficient funds to operate this facility in a satisfactory manner. Apart from not responding directly to item VIIA, the application submitted by Petitioner (Respondent's Exhibit 7) was not signed and notarized; did not include a "Statement of Operations"; did not include a "Statement of Assets & Liabilities"; did not include a "Zoning Certificate" verified by the local government authority; and did not include "Proof of Business Liability Insurance." Moreover, Petitioner did not sign the application form for the "Florida Protective Services System Background Check" she submitted, and the fee she submitted ($138.00) was, as discussed infra, not adequate. By letter of September 16, 1997, the Agency advised Petitioner that it had received her application and the fee she had tendered. The letter further advised Petitioner that: The application submitted was found to be incomplete. The information or documentation requested below must be received back in this office by 10/07/97 or your application will be denied. APPLICATION The application form you submitted has not been in use by this Agency in over six years. This form is not acceptable. A current application form is enclosed. Please complete the current application form and have it notarized. FEE The fee submitted is incorrect because you submitted an outdated application package. The correct fee cannot be determined until you submit a current application form. The current application fee is $253 plus $33 for each private pay bed. If a bed is to be designated for a recipient of OSS services, there is no per bed fee. Please refigure the fee due and submit the remaining balance due. INSURANCE You must submit proof of current business liability insurance coverage for the operation of the Assisted Living Facility. A copy of a certificate of insurance form or a copy of the policy declarations page that includes the facility name, street address, type of facility, type of insurance issued, and the beginning and ending effective dates of coverage. Binders are not acceptable. (Please do not send the entire policy.) Since you are unsure of the effective date of the license, you may submit proof that insurance coverage will begin at a future date. However, no license will be issued until proof of insurance has been provided. FIRE SAFETY Please contact the local fire marshal's office that has jurisdiction over the physical location of the facility. A satisfactory fire safety inspection must be completed before you can be licensed. Please submit a copy of the inspection report as proof the inspection has been completed. The report submitted must indicate that any cited deficiencies have been corrected or that you are approved for ALF licensure. SANITATION INSPECTION REPORT Please submit a copy of the sanitation inspection report completed by your county public health unit environmental services office. The report submitted must indicate that the inspection report was satisfactory (any cited deficiencies have been corrected). ZONING You must contact the Department of Children and Family Services, Community Residential Home Coordinator, Ellison Shapiro, (305) 377- 7511, to obtain Form 1786 if the ALF will be in a single family or multiple family zoned area. The white copy of this form should be sent to the agency. Verification of zoning approval must be provided from the city or county zoning office having jurisdiction where the facility is located. (This would be the zoning office, not Ellison Shapiro's office.) Zoning authorities must complete the Assisted Living Facility Form 3180-1007, or provide a letter on their letterhead stationery showing the name and address of the facility and that it is approved for use as an ALF. If the local zoning office will not complete the form, please submit proof that the zoning office has had the opportunity to approve or deny your request. (A dated, signed, handwritten note from the zoning authority and a business card stapled to the form would be acceptable.) HIV TRAINING Please complete and submit the enclosed HIV Education Confirmation form. This form is used to verify that all employees have been trained or will be trained in the required HIV education material. ASSETS AND LIABILITIES STATEMENT Please complete the enclosed assets and liabilities statement or provide a current balance sheet. Directions are on the reverse side of the form. You may desire to seek the assistance of a bookkeeper or an accountant in completing this form. The Agency must be able to verify that you have the financial ability to operate an ALF before your application can be approved. The form must be consistent with the application and the statement of operation form. STATEMENT OF OPERATION Please complete the enclosed statement of operation form. Directions are on the reverse side of the form. This form is a projection of anticipated expenses for the first year of operation. Directions for completing the form are on the reverse side of the form. Please consider seeking professional help, such as a bookkeeper or an accountant in completing the form. The information on this form must be consistent with the application submitted and the assets and liabilities statement. WARRANTY DEED/LEASE AGREEMENT You must provide proof that the applicant has the legal right to occupy the premises. Please submit a copy of the recorded warranty deed or a lease agreement in the applicant's name. If the corporation does not own the property, a lease agreement should be submitted between the property owner and the corporation. FLOOR PLAN Submit a floor plan of the facility indicating those rooms and areas that are to be licensed as part of the ALF. Each room should be labeled indicating the use of the room (example: bedroom, living room, bathroom, kitchen). The plan should be drawn on 8 1/2" X 11" paper. A simple hand drawn plan is acceptable. Architectural drawings are too large to fit into the Agency's files and should not be submitted to meet this requirement. BACKGROUND SCREENING Florida Abuse Hotline Information System Background Form AHCA 3110-0003 must be completed by each ALF owner with 10 percent or more interest, the administrator, general partner, each limited partner, and corporate officers (president, vice-president, secretary, and treasurer). The fee for background screening is included in the license fee. Please complete and sign the form. Petitioner did not respond to the Agency's letter of September 16, 1997. Consequently, by letter of October 16, 1997, the Agency advised Petitioner as follows: Your application for an initial license to operate the above Assisted Living Facility (ALF) is denied. It has been determined by the Agency for Health Care Administration that your application does not meet nor comply with the standards as an ALF pursuant to section 400.414, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.). The specific basis for this determination is: Submission of a fraudulent statement on the notarized application form. The application form asks if you have been arrested for a crime involving injury to persons. You wrote a comment stating "no injury". The background screening results from the Florida Department of Law Enforcement revealed that you have been arrested and convicted of aggravated assault and were received in the Florida Department of Corrections on 03/12/92 and discharged on 11/03/95. Submission of a fraudulent statement on the notarized application form is grounds for denial of this application, section 400.414(2)(i), F.S. An individual who is convicted of a crime involving injury to persons is considered not to be of suitable character to provide continuing adequate care to residents, section 400.414(2)(b), F.S. Failure to provide a complete application package. In a letter dated 09/16/97 you were informed that the application package was incomplete and that additional documentation must be provided on or before 10/07/97 or the application would be denied. You did not provide the requested documentation. The Agency is unable to verify that the applicant can provide adequate care to residents without a complete application package being on file, section 400.411(1), F.S. The letter further advised Petitioner of her right to request a formal administrative hearing to challenge the Agency's decision to deny her application. By letter of October 21, 1997, Petitioner responded to the Agency's letter of denial, and requested a formal hearing. With regard to the Agency's charge that she had submitted a fraudulent statement by stating "No Injury" in response to item VIIA, Petitioner stated her response was accurate because "I stated that I was convicted [and] wrote in the words 'no injuries' because it was worded as if with injury only." In response to the claim that her "conviction of a crime involving injury to others" rendered her of unsuitable character to qualify for licensure, Petitioner apparently disputed the Agency's contention that the crime involved injury to others, or that she was otherwise disqualified. She did not, however, dispute her conviction of a crime, which resulted in a sentence of imprisonment for a term of three years. Finally, with regard to the Agency's claim that she had failed to submit a complete application package, Petitioner responded, "I have no idea nor was I told of any documents missing out of package - please provide copy of document request and whatever documents are needed." Petitioner's criminal conviction Pertinent to Petitioner's conviction of a criminal offense, the proof demonstrates that on or about September 17, 1990, an Information was filed in the Circuit Court, Dade County, Florida, under Case No. 90-34662, which charged that Petitioner did, on August 27, 1990: . . . unlawfully and feloniously commit an aggravated assault upon OFFICER GARCIA, a Law Enforcement Officer during the course of or in the scope of said victim's duty and/or engaged in the lawful performance of his or her duty, by intentionally threatening by word or act to do violence to said victim, coupled with an apparent ability to do so, by point a SHOTGUN at said victim and threatened to kill him with a DEADLY WEAPON, to wit: A SHOTGUN, in violation of 784.021 and 784.07 and 775.0823 and 775.087 Florida Statutes. Based on the facts alleged, the Information charged Petitioner with three counts or violations of law, as follows: AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER 784.021 & 784.07 & 775.0823 Fel. IMPROPER EXHIBITION OF A DANGEROUS WEAPON RESISTING OFFICER WITHOUT VIOLENCE TO HIS PERSON On or about February 27, 1992, Petitioner was tried and found guilty of Count I, Aggravated Assault on a Law Enforcement Officer with a Deadly Weapon (a shotgun), a second degree felony proscribed by Sections 784.021, 784.07, 775.0823, and 775.087, Florida Statutes. As a result, Petitioner was sentenced to a term of three years and committed to the custody of the Department of Corrections until her discharge on November 3, 1995, upon expiration of her sentence. Further findings regarding Petitioner's failure to file a complete application At hearing, Petitioner did not dispute her application was incomplete or that the Agency, by letter of September 16, 1997, had requested additional information and documentation. Rather, in an apparent effort to avoid the consequences of an incomplete application, Petitioner averred she did not receive the Agency's letter of September 16, 1997. If true, Petitioner's plea does not excuse her failure to file a complete application or foreclose the Agency from relying on the incompleteness of the application as a basis for denial. Rather, what is dispositive is that, within 30 days of its receipt of the application, the Agency provided Petitioner with written notice by mail, at her address of record, of the errors or omissions in her application. The timely notice to Petitioner, which was not returned by the United States Postal Service, and not the actual receipt of the letter by Petitioner, preserves the Agency's right to deny the application as incomplete. Subsections 120.60(1) and (3), Florida Statutes. Notably, notwithstanding the de novo nature of these proceedings, Petitioner had not, as of the date of hearing, corrected the omissions in her application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's application for a license to operate an Assisted Living Facility. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
