The Issue Whether Respondent engaged in the conduct alleged in the Amended Notice of Specific Charges. If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate her employment.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. At all times material to the instant case, personnel at all public secondary schools in Miami-Dade County involved in the expenditure of School Board funds were required to discharge their duties in accordance with the Manual of Internal Accounting for Secondary Schools (Accounting Manual). Among the Accounting Manual's provisions were the following: EXPENDITURE PROCEDURES PURCHASING AND RECEIVING AUTHORIZATION Authorized purchases shall be made in compliance with Florida Statutes, State Board of Education Rules, Board Rules, and administrative directives and manuals. Principal has responsibility for authorizing all internal fund purchases Principal may delegate this authority to another administrator Delegate assignment must be in writing and memorandum retained for audit Principal and his/her delegate will make the following determination before authorizing internal fund purchase Uncommitted funds are available Items to be purchased meet legal requirements governing school purchasing activities Bid requirements have been met Items to be purchased are appropriate for sponsoring account RESTRICTIONS Payment for unauthorized purchase shall be sole responsibility of person placing order School Board employees are prohibited from soliciting personal discounts on merchandise or services from School Board vendors, potential vendors and patrons . . . . FLORIDA SALES TAX RESTRICTION A. Items purchased for which school will claim ownership are exempt from sales tax. . . . BID REQUIREMENTS Lowest bid meeting all specifications must be accepted Competitive quotations may be requested but not required 2. Use of split bids to keep purchases under $1,000 is specifically forbidden Purchases of $1,000 through $6,000 Request at least three quotations which may be obtained in writing or by telephone. Use of split bids to circumvent this regulation is specifically forbidden All quotations must be recorded and filed with documentation for disbursement transaction . . . . CERTIFICATION OF RECEIPT Certification of receipt must be made by person who can certify that merchandise, as specified, has been received or service rendered and that payment is in order A school custodian or office clerk will usually sign delivery ticket for shipping representative Delivery ticket documents delivery only Delivery ticket does not certify "as specified" receipt Employee retaining custody of materials purchased will usually certify receipt "as specified" on vendor invoice Certification of receipt of goods must be forwarded to secretary/treasurer promptly to facilitate timely payment CASH DISBURSEMENTS APPROVAL Approving signature of principal or his/her designee must appear on each of the following documents Purchase order (when appropriate) Check requisition Check Documentation Invoice Vendor's name and address Date of purchase Detail of what was purchased Total obligation Extensions and additions must be checked before payment Invoice must contain signature of employee certifying receipt of goods "as specified" . . . . Order Form 1. Advance payments to commercial vendors usually not permitted. . . . Check Requisition When there is no existing documentation check requisition will include documenting explanation . . . Prohibited (will not be accepted as documentation) Monthly statements Packaging slips TIMELY PAYMENTS Payment must be made within thirty (30) days of receipt of goods unless special arrangements are made with the vendor. Deferred payment agreement must be in writing and retained for audit CHECK REQUISITION Check requisition form must be used to initiate every expenditure from internal funds Check requisition will contain following information Requisition number (check number) Name of school Date Fund to be charged Name of payee Amount Identification of transaction Necessary signatures WRITING OF CHECK (See Section 5-1.2, Recording to Journal and Ledger, for pegboard procedures) Payments must be made to specific person, company, or organization Do not make checks payable to "cash" Do not make checks payable to paying school Do not write check unless all supporting documents and complete information submitted It is the responsibility of secretary/treasurer to attach all pertinent documentation to check requisition prior to submitting check for administrative signature Documentation must include certification of receipt "as specified" or certification of advance payment requirement for government agencies or public institutions Each check issued must be signed by principal or his/her designee and one clerical co-signer After the check is signed by the principal, the invoice will be stamped "paid," and the check number and date indicated . . . . Among the public secondary schools that the School Board operates, controls, and supervises is Booker T. Washington Senior High School. Booker T. Washington Senior High School opened on August 30, 1999. Gloria Evans has been the principal of Booker T. Washington Senior High School since its inception. The site that houses Booker T. Washington Senior High School was, prior to August 30, 1999, occupied by a School Board- operated middle school, Booker T. Washington Middle School. (BTW). Irving Grice served as the principal of BTW from January of 1994 to June of 1998. He was succeeded by Ms. Evans, who was principal of the middle school from July of 1998 to September of 1998. Albert Payne replaced Ms. Evans as principal of BTW in the latter part of September of 1998. Mr. Payne remained the principal of the school until it closed at the end of the 1998-99 school year. At all times material to the instant case, Respondent was employed by the School Board as a secretary/treasurer and assigned to BTW. Respondent is still employed by the School Board as a secretary/treasurer, although she is no longer assigned to BTW. She has been suspended pending the outcome of the instant dismissal proceeding. As a noninstructional employee of the School Board occupying a secretary/treasurer position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract). Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." At all times material to the instant case, it has provided, in pertinent part, as follows: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s). Where the Superintendent recommends termination of the employee, the Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice. Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges. The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented. The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals. The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal. Dismissals are not subject to the grievance/arbitration procedures. Respondent was hired to work at BTW by Mr. Grice. She began working at the school in September of 1997. During the time that she was assigned to BTW, Respondent functioned as BTW's treasurer. (Another employee at the school acted as the school secretary). As BTW's treasurer, Respondent was responsible for processing invoices received from vendors doing business with the school. In those cases in which she determined that payment was warranted, she was required to provide the principal, or the principal's designee, with a completed check requisition form, accompanied by all pertinent supporting documentation, as well as a filled-out check for the principal's, or the principal's designee's, signature. On the check requisition form, the following information had to be furnished: the commodities or services being purchased, the name of the vendor/payee, the dollar amount of the check, the check number, and the internal school fund or account to be charged. After payment was made to the vendor, it was Respondent's responsibility to enter the information concerning the transaction, including the name of the vendor/payee, on a transaction register. Respondent was also responsible for maintaining the paperwork relating to each transaction. She was supposed to keep these documents in a locked file cabinet in her office. Only Respondent, the principal, and an assistant principal had keys to Respondent's office. Only Respondent and the principal had keys to the file cabinet in Respondent's office. BTW maintained a checking account at SunTrust Bank in Miami, Florida (SunTrust). It was from this SunTrust checking account that monies were taken to pay vendors doing business with BTW. Checks written on this account would be honored and cashed by SunTrust only if signed by a school administrator (the principal or the principal's designee) and by a clerical employee at the school (Respondent or the principal's secretary). At all times material to the instant case, the school administrator designated to co-sign BTW checks in lieu of the principal was Eileen Oats, an assistant principal at the school.1 Ms. Oats and Ms. Darling have known each other since the early to mid-1990's when they both worked at Miami Jackson Senior High School (Ms. Oats as a teacher and Respondent in a clerical position). After meeting at Miami Jackson Senior High School (Jackson), the two became friendly; however, when Ms. Oats left Jackson to become an assistant principal at BTW, they lost contact with each other. Their friendship was renewed when Respondent was hired to work at BTW. Respondent and Ms. Oats socialized outside of school during non-work hours. Among other things, they went shopping together at the Famous Garment Corporation's clothing store located at 2220 East 11th Avenue in Hialeah, Florida (Famous Garments). Famous Garments specializes in women's clothing. It sells only women's suits, jackets, and skirts. It does not sell, nor has it sold at any time material to the instant case, office or school supplies. Respondent was a regular customer at Famous Garments during the time that she worked at BTW. She used a lay-away account established in the name of BTW to make personal purchases at Famous Garments (on which she paid no sales tax). The clothing she purchased was paid for, in part, by monies in BTW's SunTrust checking account. Of the total cost of the items she purchased (47 women's suits), $3,905.45 was paid for with BTW funds (from BTW's SunTrust checking account). Respondent was able to misappropriate these funds for her personal use by deceiving the administrators who co-signed the BTW checks in question concerning the nature of the items being paid for. Neither the checks themselves, which Respondent wrote, nor the supporting documentation she presented to the administrators, suggested that it was women's clothing that was being purchased. The following were the BTW checks that Respondent gave to Famous Garment Corporation to pay for the suits she purchased (Famous Garments checks): check number 1421, in the amount of $295.00, dated June 5, 1998; check number 1456, in the amount of $239.00, dated May 26, 1998; check number 1552, in the amount of $429.00, dated August 3, 1998; check number 1570, in the amount of $250.00, dated September 1, 1998; check number 1597, in the amount of $250.00, dated October 2, 1998; check number 1668, in the amount of $250.00, dated November 6, 1998; check number 1723, in the amount of $276.00, dated December 14, 1998; check number 1746, in the amount of $248.00, dated January 7, 1999; check number 1773, in the amount of $250.00, dated January 26, 1999; check number 1811, in the amount of $310.00, dated February 12, 1999; check number 1816, in the amount of $327.00, dated February 19, 1999; check number 1890, in the amount of $291.45, dated March 25, 1999; check number 1895, in the amount $211.00, dated March 26, 1999; and check number 1903, in the amount of $279.00, dated March 30, 1999. Respondent's signature appears on the first signature line on each of these checks. Ms. Oats co-signed check numbers 1421, 1552, 1597, 1773, 1811, 1816, 1890, 1895, and 1903. Mr. Grice co-signed check number 1456. Ms. Evans co-signed check number 1570. Mr. Payne co-signed check numbers 1668, 1723, and 1746. Although Respondent presented the Famous Garments checks to Famous Garment Corporation after the checks were co- signed by the principal or the principal's designee, the name "Famous Garment Corporation" does not appear on the "pay to the order of" line on any of the checks. Instead, there are the following names (which were placed there by Respondent): "Famous Corp. Store" (check number 1421); "Famous Inc." (check number 1456); "Famous Corp." (check number 1552); "Famous Corp. Inc." (check number 1570); "Famous Corporation Office" (check number 1597); "Famous Corporation" (check numbers 1668, 1723, and 1890); "Corporation Inc." (check number 1746); "Office Corporation" (check number 1773); "Famous Office Corporation" (check numbers 1811 and 1816); "Famous Office Supplies" (check number 1895); and "Corporation" (check number 1903). Respondent did not indicate on any of the Famous Garments checks, on the space provided for noting the purpose of the payment (the "for" line), that it was "for" women's clothing. Respondent left blank the "for" line on check numbers 1597, 1811, and 1890. On the "for" line on check numbers 1421, 1456, 1552, and 1903, Respondent wrote "office supplies." On the "for" line on check number 1421, she also wrote, in addition to "office supplies," "# 46539," which is the number of the $295.00 invoice 2/ that Famous Garments issued when Respondent used BTW's lay-away account to purchase six women's suits on April 30, 1998. On the "for" line on check numbers 1746 and 1816, Respondent wrote "# 27102" and "# 5462," respectively. (The significance, if any, of these two numbers is unclear.) On the "for" line on the remaining checks, Respondent wrote either "lead teacher" or "lead teachers." During the 1998- 99 school year, classroom teachers employed by the School Board could each purchase, with School Board funds, up to $250.00 worth of supplies for their classrooms under the lead teacher program. To conceal what the Famous Garments checks had actually been used for, Respondent, in making transaction register entries concerning these checks, entered the following fabricated vendor/payee names (none of which, unlike the name of the real recipient of the checks, contained the word "garment"): "Famous Office Corp." (check number 1421), "Famous Office Supplies" (check number 1456), "Famous Corporation" (check numbers 1552 and 1723), "Famous Corp." (check number 1570), "Corporation Office" (check number 1597), "Famous Office" (check number 1668), "Corporation Inc." (check number 1746), "Office Connection Supplies" (check number 1773), "Office Connection" (check numbers 1811 and 1890), "Office Corporation" (check numbers 1816 and 1903), and "Office Supplies" (check number 1895). The Famous Garments checks were endorsed by Famous Garment Corporation and deposited in Famous Garment Corporation's account at Union Planters Bank in Miami, Florida. On or about March 11, 1999, Respondent submitted a Credit Application to Eastbay, Inc., a mail order company that sells athletic apparel and supplies, seeking to open an account in the name of BTW. She signed the application, although she was not authorized to do so. On the application, Respondent indicated that the "ship to name" that Eastbay should use in delivering items purchased through the account was "Mrs. Darling." The BTW account was opened on or about March 11, 1999. Within a couple of days of the opening of the account, Respondent purchased for her personal use four pairs of expensive athletic shoes from Eastbay, the cost of which ($577.91 in total) was billed to the account: Two pairs of the same colored (combination of white, black, and gray) Nike Air Jordans XIV athletic shoes, sizes 10 1/2 and 11 1/2, costing $149.99 each, plus $33.97 for United Parcel Service "next day delivery" shipping, for a total of $333.95; one pair of raisin, pimento, and cream-colored, size 10 1/2, Nike Air Max Plus athletic shoes, costing $124.99, plus $8.99 for shipping, for a total of $133.97; and one pair of orange, black, and white-colored, size 10 1/2, Reebok Fusion 3DMX athletic shoes, for a total cost of $109.99. At the time of these purchases, BTW (whose school colors were orange and black) did not buy athletic shoes for its students. As principal of Booker T. Washington Senior High School, Ms. Evans has authorized the purchase of athletic shoes for members of school teams, but she has never authorized the purchase of shoes costing in excess of $50.00. 3/ The athletic shoes that Respondent purchased from Eastbay were paid for, in part, by monies in BTW's SunTrust checking account. Of the total cost of these purchases ($577.91), all but $8.98 was paid for with BTW funds (from BTW's SunTrust checking account). The balance ($8.98) was paid by money order. Respondent wrote and signed two BTW checks, check numbers 1870 and 1882, that she sent to Eastbay, after she had Ms. Oats co-sign them. Check numbers 1870 and 1882 were made out to "East Bay, Inc." and "East Bay," respectively. Ms. Oats was familiar with East Bay. She knew that it sold sporting goods, including athletic footwear. Check number 1870 was in the amount of $333.95. It was dated March 14, 1999. Written on the "for" line of check number 1870 was "001551924," the number of the invoice for the Nike Air Jordans XIV athletic shoes that Respondent had purchased. Check number 1882 was in the amount of $234.98. It was dated March 23, 1999. Written on the "for" line of check number 1882 was "1602572, 1566457," the numbers of the invoices for the Reebok Fusion 3DMX (invoice number 1602572) and Nike Air Max Plus (invoice number 1566457) athletic shoes Respondent had purchased. In making transaction register entries concerning check numbers 1870 and 1882, Respondent entered the following vendor/payee names: "Interscholastic" (check number 1870) and "Eastbay, Inc." (check number 1882). Check numbers 1870 and 1882 were received by Eastbay and deposited in its bank account. On March 12, 1999, Respondent ordered an IBM Aptiva computer from Micro Warehouse. She ordered it in the name of BTW, although it was for her personal use. (Computers used in Miami-Dade County public schools are obtained by the School Board's Purchasing Department, through the solicitation of competitive bids.) On or about March 15, 1999, Respondent sent Micro Warehouse a School Board Internal Funds Purchase Order (purchase order number 004671) that she had prepared, in the amount of $1,167.00, for the computer. The purchase order was signed as "authorized by" Respondent, notwithstanding that she did not have the power to authorize the purchase. On the line for the "originator's signature" was an illegible signature, not that of anyone who was authorized to originate such a purchase order. Written in next to "ship to" were "Booker T. Washington" and "Treasurer." The purchase order indicated that fund 9 was the internal fund or account that would be charged for the purchase. A fund 9 purchase is supposed to be for school equipment or supplies for the day-to-day operation of the school costing no more than $750.00. The computer that Respondent ordered from Micro Warehouse was shipped to BTW on March 15, 1999. BTW was charged (by invoice number E7200041) $1,169.00 for the computer, plus $25.25 for shipping. The computer came with certain software that had been pre-installed (on January 18, 1999). On March 17, 1999, starting at around 10:00 p.m., after Respondent had received the computer, additional software (Microsoft Office and Corel Office) was installed. Voice recognition software (IBM's Via Voice) and telephone answering software (Ring Central) were subsequently loaded on the computer. Respondent used the computer (for her own personal benefit) as an answering machine that answered calls placed to her home telephone number. On March 18, 1999, Respondent ordered from Micro Warehouse, in the name of BTW, another item that was for her personal use. The order she placed this time was for a 17-inch IBM monitor that was compatible with the computer she had previously ordered from Micro Warehouse. The monitor was shipped to BTW later that same day. BTW was charged (by invoice number E7351901) $379.00 for the monitor, plus $17.48 for shipping. Monies in BTW's SunTrust checking account were used to (partially) pay for the computer and monitor that Respondent had purchased from Micro Warehouse. Respondent wrote and signed four BTW checks, check numbers 1877, 1879, 1896, and 1902, totaling $1,327.73, that she sent to Micro Warehouse, after she had Ms. Oats co-sign them. Check number 1877 was made out to "Microwarehouse Supplies." It was in the amount of $383.25 and dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3606623," which was the number that Micro Warehouse had assigned the order she had placed for the computer. Check number 1879 was also made out to "Microwarehouse Supplies." It was in the amount of $396.48 and, like check number 1877, dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3746706," which was the number that Micro Warehouse had assigned the order she had placed for the monitor. Check number 1896 was made out to "Microwarehouse." It was in the amount of $228.00 and dated March 26, 1999. On the "for" line of the check, Respondent wrote "#E7200041," which was number of the invoice for the computer. Check number 1902 was also made out to "Microwarehouse." It was in the amount of $320.00 and, like check number 1896, dated March 26, 1999. On the "for" line of the check, Respondent wrote "42248971," which was number of the invoice for the monitor. In making transaction register entries concerning check numbers 1877, 1879, 1896, and 1902, Respondent entered the following vendor/payee names: "Microwarehouse" (check numbers 1877, 1896, and 1902) and "Microwarehouse Supplies" (check number 1879). Check numbers 1877, 1879, 1896, and 1902 were received by Micro Warehouse and deposited in its Bank of America account. On March 25, 1999, Respondent purchased $237.85 worth of items from the Brickell Village Publix, which were used for her own personal benefit. The items were charged to BTW's account at Publix (customer charge number I-02555383) and paid for with BTW funds (from BTW's SunTrust checking account). The BTW check used to pay Publix Supermarkets, Inc. (check number 1892) was dated March 26, 1999, and in the amount of $395.49. (It covered purchases other than those, described above, that Respondent had made on March 25, 1999.) The check was signed by Respondent and co-signed by Ms. Oats. On the "for" line of the check, Respondent wrote "#2466057, 2555383, 2389160." The completed check requisition form that Respondent presented to Ms. Oats indicated that the science club was the internal fund or account that would be charged for the purchases paid for by check number 1892, even though these purchases were not for the benefit of the science club. (Indeed, the science club did not have authorization to make any purchases at the Brickell Village Publix.) In early April of 1999, during spring break, Mr. Payne went to BTW to check the mail the school had received. Only he and the custodians were present in the building. In going through the mail, Mr. Payne found a bank statement from SunTrust. Enclosed with the bank statement were various cancelled BTW checks. Among the cancelled checks were checks that Respondent had sent to Famous Garments, Eastbay, and Micro Warehouse. Also enclosed with the statement was a receipt for the purchases Respondent had made at the Brickell Village Publix on March 25, 1999. Mr. Payne became suspicious when he saw the Micro Warehouse checks (which were co-signed by Ms. Oats, not Mr. Payne). The previous month (March of 1999), Respondent had asked Mr. Payne to sign a check made out to Micro Warehouse. When Mr. Payne looked at the check requisition form that accompanied the check, he noticed that it did not indicate the "funding structure." He therefore inquired of Respondent which school program was to be charged for the purchase. Respondent had no answer. Neither was she able to name for Mr. Payne the person who had ordered the items being purchased. Given Respondent's failure to satisfactorily respond to his questioning, Mr. Payne refused to sign the check and instead wrote "void" on it. His suspicion aroused, Mr. Payne contacted the School Board's Internal Accounts office. He subsequently spoke to Julio Miranda, a director in the School Board's Office of Management and Compliance Audits, who told him "to make sure [to] hold on to these [cancelled checks that had been enclosed with the bank statement], and all the paperwork and bills." Mr. Miranda advised Mr. Payne that he "would send someone out" to BTW. After spring break, Respondent started coming to work earlier than usual, often before Mr. Payne, and leaving work later than usual. This unusual attendance pattern stopped when the investigative audit at the school, conducted by the School Board's Office of Management and Compliance Audits, began. Claude Remy was the field auditor that Mr. Miranda assigned to work at BTW on the audit. Upon arriving at BTW, Mr. Remy examined the school's transaction register, along with the records that Respondent, as the school's treasurer, was responsible for maintaining concerning purchases made with BTW funds. His examination revealed that there was no supporting documentation for some of the checks listed on the transaction register. The checks without supporting documentation were those (described above) that Respondent had used, without proper authorization, to pay for items she purchased for her personal use (Above-Described Checks). The supporting documentation that she had shown to the school administrators whom she had asked to co-sign these checks was nowhere to be found. Mr. Remy was able to locate supporting documentation for all of the other checks listed on the transaction register, however. 4/ When Mr. Remy asked Respondent where he could find the supporting documentation for the Above-Described Checks, Respondent told him that she did not know, but suggested that Mr. Payne might have removed these documents from her office during spring break. In fact, Mr. Payne had done no such thing. Mr. Payne already had in his possession copies of some of the Above-Described Checks (having received them along with the bank statement that had come in the mail during spring break). At the request of Mr. Remy, he obtained copies of the remaining Above-Described Checks from SunTrust. Mr. Payne, together with Mr. Remy, also contacted Famous Garment Corporation, Eastbay, and Micro Warehouse and asked them to provide any documentation they might have concerning transactions with BTW, a request with which these vendors complied. Mr. Remy questioned Respondent about the Famous Garments checks. Respondent told him that these checks were for "office materials," which, as she knew, was not true. (As noted above, at no time material to the instant case has Famous Garments even sold office materials or supplies.) Mr. Remy also asked Respondent about the athletic shoes that had been purchased from Eastbay. In response to Mr. Remy's inquiry, Respondent claimed that the coach of BTW's basketball team had ordered the shoes along with the uniforms he had ordered. 5/ Mr. Miranda himself visited the school during the course of the audit and interviewed Respondent. During one interview, with respect to the items that had been purchased at the Brickell Village Publix on March 25, 1999 (with BTW funds), Respondent admitted to Mr. Miranda that she had "donat[ed]" some of these items for use at an employee's bridal shower to cover her personal share of the cost of the shower (which she had agreed to assume) and that she had appropriated the remaining ($50.97 worth of) items for her own use. Mr. Miranda had first visited BTW and spoken with Respondent on April 13, 1999. During this initial visit, he talked with Respondent about the Micro Warehouse purchases. He showed her the Micro Warehouse checks that Mr. Payne had found (during spring break) in the envelope containing the bank statement from SunTrust. Mr. Miranda then asked Respondent if she knew anything about these checks. Respondent claimed not to remember what the checks were for. The following day, Thursday, April 14, 1999, Mr. Remy arrived at the school. Upon his arrival, he spoke with Mr. Payne, who told him of the concerns he had regarding the Micro Warehouse checks. Mr. Remy and Mr. Payne contacted Micro Warehouse and were faxed a copy of an invoice that reflected that BTW had purchased an IBM Aptiva computer from Micro Warehouse. The invoice contained, among other things, the serial number of the computer. After obtaining the invoice, Mr. Remy approached Respondent and asked her to show him the computer so that he could make sure that it matched the serial number set forth on the invoice and that it had a property control (PC) number. (Every School Board item costing more than $750.00 must have a PC number.) Respondent claimed that she did not know where the computer was. Mr. Remy, accompanied by Respondent, looked for the computer the remainder of that day (April 14, 1999) and the following day (Friday, April 15, 1999). The computer was not in any of the places that he searched. Upon Mr. Remy's return to BTW the following Monday morning (April 18, 1999), Respondent informed him that the computer had been located. She then took him to the computer, which was in open view in a storage area on the first floor of the school. Mr. Remy had been in this storage area the week before with Respondent and he had not seen the computer. After verifying that the computer's serial number was the same as the serial number on the invoice and noting that the computer did not have a PC number, Mr. Remy contacted Mr. Miranda. Pursuant to Mr. Miranda's instructions, Mr. Remy impounded the computer and transported it to Mr. Miranda's office. While the computer was in his possession, Mr. Miranda asked Marla Berenson, the School Board's Executive Director of Electronic Processing Audits, to look at it and check for signs of "personal usage." Ms. Berenson obtained a keyboard, mouse, monitor, and printer, hooked them up to the computer, and then turned on the computer. She discovered that software typically found on School Board-owned computers was not installed on the computer. Among the programs she noticed on the desktop was Ring Central, a program not typically used by the School Board. She opened a Ring Central file that contained a log of incoming and outgoing telephone calls (log file). The telephone numbers from which the incoming calls were made and the telephone numbers to which the outgoing calls were made, as well as the dates and times of the calls and their duration, were set forth on the log. An examination of the log revealed that the incoming and outgoing calls were made "after normal business hours at the school district." Ms. Berenson printed copies of approximately 50 pages of the log file and gave these copies to Mr. Miranda, when she returned the computer to him. The computer remained in Mr. Miranda's office until June 16, 1999, when Mr. Miranda relinquished possession of the computer to Sergeant Oren Paisant of the School Board's Division of School Police, who had been assigned to investigate the purchasing activities at BTW. Mr. Miranda also provided Sergeant Paisant with the copies of the Ring Central log file that Ms. Berenson had printed for him. Sergeant Paisant obtained telephone records for one the telephone numbers from which, according to the log, an incoming telephone call (answered by the computer) had been placed. An examination of the telephone records revealed that the call in question had been placed to Respondent's home telephone number. With the assistance of a local Florida Department of Law Enforcement (FDLE) agent, Sergeant Paisant removed the hard drive from the computer. He then placed it in a manila envelope and mailed it to the FDLE crime laboratory in Tampa, in care of Brian Criste, a crime laboratory analyst working in FDLE's computer evidence recovery section. Mr. Criste is certified by the State of Florida as a forensic computer evidence recovery analyst. In a letter accompanying the hard drive, Sergeant Paisant advised Mr. Criste that the School Board was interested in finding out if there was anything on the hard drive indicating "personal use" by Respondent. Respondent's name, date of birth, home address, home telephone number, and social security number were set forth in the letter. Mr. Criste searched the computer's hard drive using forensic software ("Encase") specifically developed for this purpose. "Encase" is the "standard software" used by forensic computer evidence recovery analysts in the United States. It is generally accepted as reliable by the analyst community. Mr. Criste himself and his agency have tested "Encase" and determined it to be reliable. "Encase" enables the user to see a "picture of everything that's on that hard drive," without modifying any of its content. Among the things that Mr. Criste saw on (and recovered from) the hard drive he had been sent by Sergeant Paisant was a registration file (named "REG.REG."), created when the Via Voice program was installed, which contained Respondent's name, home address, and home telephone number. He also recovered from the hard drive several sound files. Mr. Criste copied the recovered files on a CD-ROM, which he sent to Sergeant Paisant, along with a forensic image backup of the hard drive. The original hard drive was later returned to Sergeant Paisant. Sergeant Paisant listened to the sound files on the CD-ROM Mr. Criste had sent him. He recognized Respondent's voice on one "outgoing message leaving a greeting for anyone who was calling." He also heard the voices of people (other than Respondent) leaving messages for "Rosy" and, in one instance, for "Rosa or Rosy Darling." On October 7, 1999, following the completion of Sergeant Paisant's investigation, Norman Lindeblad, a District Director in the School Board's Office of Professional Standards (who, on May 7, 1999, had removed Respondent from the BTW school site and given her an alternative work assignment at the Region IV office) conducted a conference-for-the-record with Respondent, at which a copy of Sergeant Paisant's investigative report was presented to and reviewed with Respondent. Respondent was then given the opportunity to respond to the allegations against her. At the conclusion of the conference, Respondent was advised that recommendations for her dismissal would be forthcoming. Such recommendations were subsequently made by Ms. Evans and Ms. Payne to the Region IV office. On November 4, 1999, Mr. Lindeblad conducted a pre- dismissal conference-for-the-record with Respondent. Again, Respondent was given the opportunity to address the allegations against her. On November 17, 1999, the School Board suspended Respondent and initiated a proceeding to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through VI of the Amended Notice. DONE AND ENTERED this 28th day of August, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of August, 2000.
The Issue The issue for consideration herein is whether the Petitioners, MISSCO, GENERAL, AND INTERSTATE should be placed on the convicted vendor list pursuant to Section 287.133 Florida Statutes (1991).
Findings Of Fact The facts stated in the Joint Stipulations to the extent set forth below are hereby adopted as findings of fact: On April 9, 1993, DMS issued notices of intent pursuant to Section 187.133(3)(e)(1), Florida Statutes. Jt. Stips. Appen. at pp. 72-73. On April 13, 1993, MISSCO filed petitions with DMS for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is in the public interest for MISSCO, GENERAL, or INTERSTATE to be placed on the Florida Convicted Vendor List pursuant to Section 287.133, Florida Statutes. Jt. Stips. Appen. at p. 74-77. Subparagraph 287.133(3)(e)e., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. On April 5, 1991, General Equipment Manufacturers, Inc., (hereinafter "General"), a Mississippi corporation, and wholly owned subsidiary of MISSCO Corporation, was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. Jr. Stips. p. 1, Appen. at pp. 41-43. A criminal information was filed in the United States District Court for the Southern District of Mississippi against General Equipment Manufacturers, Inc., alleging a violation of Section 1001, Title 18, United States Code and applicable Federal Acquisition Regulations which occurred on or about December 2, 1988. Jt. Stips. p. 1, Appen. at p. 40. The criminal information filed in the United States District Court, Southern District of Mississippi charged General with falsely representing on or about December 2, 1988 that the equipment schedule and price list submitted to the General Services Administration (hereinafter GSA) was General's established commercial price list. (Jt. Stips. p. 2, Appen. at p. 40. Upon entry of a plea of guilty, the Court entered a judgement against General which was filed April 5, 1991. The judgement required payment of a special assessment of $200, a fine in the amount of $10,000, without interest, and restitution in the amount of $28,000. Jt. Stips. p. 2, Appen. at pp. 40-48. The GSA issued Solicitation No. FCGS-X8-38010-N for FSC Group 66 Part II, Section P, Laboratory/Pharmacy Furniture. General submitted an offer dated August 18, 1988, and signed by Charles H. Wright, General Manager of General's SystaModules Division. In connection with its offer, General submitted its purported commercial price list dated January 31, 1987. Mr. Wright certified in Section M-FSS-330, M.3, Basis for Price Negotiation, Item (c), Certificate of Established Catalog or Market Price, that: The price(s) quoted in General's proposal is based on established catalog or market prices of commercial items, as defined in FAR 15.804-3(c), in effect on the date of the offer or on the dates of revisions submitted during the course of negotiations. Substantial quantities of the items have been sold to the general public at such prices. All of the data, including sales data, submitted with General's offer are accurate, complete, and current representations of actual transactions to the date when price negotiations are concluded. By letter dated December 2, 1988, Mr. Wright, in his capacity as General Manager of General's SystaModules Division, certified on behalf of General that: . . . all data submitted with General's offer pursuant to the discount schedule ad marketing data sheets and any other data submitted as as part of General's offer on Solicitation FGS-X8-38010-N are current, accurate, and complete a of the conclusion of negotiations, which occurred on December 2, 1988. Jt. Stips. p. 2-3, Appen. at pp. 51-53. On the basis of General's offer on Solicitation No. FGS-X8-38010-N, the GSA awarded General Contract No. GS-00F-06709 on December 13, 1988. The contract was for the period February 1, 1989, through January 31, 1992. Jt. Stips. p. 3-4, Appen. at p. 53. An investigation by the Federal Bureau of Investigation determined that General provided the GSA with fabricated price lists in connection with FGS-X8-38010-N. Jt. Stips. p. 4, Appen. at pp. 53-54. The details of the criminal information against General are discussed in the findings and determination made by the GSA Office of Acquisition Policy, dated May 18, 1992, which are incorporated herein by reference. Jt. Stips. Appen. at pp. 49-71). Particular findings are as follows: Federal debarment was imposed on General and its corporate officials Messrs. Wright and Majure. Jt. Stips. Appen. at p. 50. The debarments were effective throughout the Federal Executive Branch. The debarment precluded the award, renewal, or extension of federal contracts. Jt. Stips. Appen. at p. 50. Debarment proceedings were initiated by separate notices dated November 1, 1990 based on a referral from the Federal General Services Administration (GSA), Office of Inspector General (OIG). Jt. Stips. Appen. at p. 51. General bid on GSA Solicitation No. FGS-X3-36426-N and in connection with its offer General submitted a "dealer retail price list," and certified that: its prices were based on established catalog or market prices, substantial quantities of the items had been sold to the general public at said prices: and that all of the data submitted with its offer was accurate, complete and current representations of actual transactions up to the date when price negotiations were concluded. Jt. Stips. Appen. at p. 51. General's offer on the solicitation was accepted and it was awarded contract number GS-00F-70316 on April 19, 1984. Jt. Stips. Appen. at p. 52. On June 28, 1985 General made the same representations as to GSA Solicitation No. FGS-X8-38000-N for laboratory and pharmacy furniture. The award was made to General on December 9, 1985. Jt. Stips. Appen. at p. 52. Identical representations were made by General in response to GSA Solicitation No. FCGS-X8-38010-N issued on July 7, 1988. The solicitation was for laboratory and pharmacy furniture. The award was made to General on December 13, 1988. Jt. Stips. Appen. at p. 53. Criminal Information Number J90-00080(B) was filed in the U.S. District Court for the Southern District of Mississippi on November 15, 1990. The information was based on the FBI investigation of General's submission of false commercial price lists to GSA. The criminal information charged General with violating Title 18, U.S.C. 1001 in connection with its offer on Solicitation No. FGS-X8-38010-N. It alleged that General knowingly, willfully, and falsely represented to GSA that the equipment schedule and price lists submitted with General's 1988 offer was General's established commercial price list. Jt. Stips. Appen. at p. 54. General pled guilty to Criminal Information No. J90-00080(B) on December 19, 1990 and was ordered to pay a fine of $10,000 and to make just restitution to the GSA in the amount of $28,000. The conviction was also used as the basis for the federal debarment of General. Jt. Stips. Appen. at p. 54. Mr. Wright and Mr. Majure were also debarred by virtue of their conduct in connection with the General conviction. Jt. Stips. Appen. at pp. 54- 59. General and MISSCO are affiliated companies. General is a wholly-owned subsidiary of MISSCO. MISSCO is directed and governed by its executive committee which acts in lieu of the board of directors. Mr. Majure was a director of MISSCO, a member of MISSCO'S executive committee, a senior vice president of MISSCO, and president, director, and general manager of General. Jt. Stips. Appen. at p. 59. Mr. Majure held a position of substantial responsibility in both MISSCO and General, and through MISSCO's control group is accountable for the circumstances of General's crime. Jt. Stips. Appen. at p. 60. A decision not to impose federal debarment on MISSCO was predicated on MISSCO management's decision to ensure that it did not supply the Federal government with the same goods and services formerly provided by General during the period of General's debarment: MISSCO management made a commitment to emphasize ethical business practices: the people responsible for General's crime were no longer employed by MISSCO: the GSA administrative record (with the exception of General) does not indicate a lack of business integrity or poor performance on federal contracts. Jt. Stips. Appen. at pp. 61-63. Federal debarment of General was predicated upon the following: conviction of the crime of making false statements posed a substantial risk to government business dealings: General submitted false information on solicitations over an extended period of time: General fabricated price lists and false certification son two prior solicitations: General's crime posed a substantial danger to the integrity of the Federal government's MAS program: the accountable individuals for the crime were high-ranking officials at General. Jt. Stips. Appen. at pp. 63-66. The federal debarment proceedings found mitigating factors in that: the parties pled guilty and cooperated with the Department of Justice throughout the investigation: the parties cooperated with GSA throughout the debarment proceedings: General was not charged with deliberate overcharges on its federal MAS contracts: General promptly paid its fine and restitution: General has made good faith efforts to undertake remedial action. Jt. Stips. Appen. at pp. 68-69. On April 9, 1993, Respondent issued Notices of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, which were received by the Petitioners. Jt. Stips. p. 5, Appen. at pp. 72-73. On April 13, 1993, Petitions filed petitions pursuant to Section 287.133(3)(e)2, Florida Statutes, and Section 120.57(1), Florida Statutes, requesting an order determining that it is not in the public interest for Petitioners to be placed on the State of Florida Convicted Vendor List. Jt. Stips. p. 5, Appen. at pp. 74-75. MISSCO is a holding company which has a number of operating divisions and two wholly-owned subsidiary corporations, General Equipment Manufacturers (General) and MISSCO Exports Corporation (Exports). Jt. Stips. p. 2, Appen. at pp. 35-36. Interstate of Florida is a Division of MISSCO and is a dealer (re- seller) of General's products. Jt. Stips. p. 2. General and MISSCO are commercially distinguishable and they do not occupy the same facilities. MISSCO's primary lines of business are distribution of school equipment and supplies, office equipment and supplies, and commercial printing. Jt. Stips. p. 4. MISSCO Exports is an entity formed solely for accounting and tax purposes, has no employees, and does not engage in substantive commercial operations. Jt. Stips. p. 4. MISSCO has extensive dealings with the federal government, as supplier of goods manufactured by other entities. General is the only MISSCO entity that contracts with the government under the Multiple Awards Schedule (MAS) program. General's primary line of business is manufacturing institutional furniture. Jt. Stips. pp. 4-5. In compliance with paragraphs 287.133(3)(a) and (B), Florida Statutes, MISSCO made timely notification to the DMS and provided details of the conviction of General, by letter dated March 24, 1992 and provided copies of the criminal information, judgement and related correspondence. Jt. Stips. p. 5, Appen. at pp. 37048. Payment of the fine in the amount of $10,000 and restitution in the amount of $28,000 imposed by the conviction and judgement entered April 5, 1991 were promptly paid by General on April 15, 1991. Jt. Stips. pp. 5-6, Appen. at pp. 47-48. Subsequent to the criminal information filed in the United States District court, Southern District of Mississippi in November of 1990, General entered a plea of guilty to the charge, thus eliminating the necessity for further investigation and trial. Jt. Stips. p. 6. The GSA in its findings and determination dated May 18, 1992, cited mitigating factors favorable to General and MISSCO. The factors included, cooperation with the Department of Justice throughout its investigation; cooperation with the GSA throughout the debarment proceeding; constructive dealings by counsel for MISSCO and General with the GSA Office of General Counsel on issues relating to the restrictions on MISSCO and General's business relationship with the government and government prime contractors. Jt. Stips. p. 6, Appen. at pp. 68-69. MISSCO fully cooperated with the DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Jt. Stips. p. 6. MISSCO formally filed its disclosure pursuant to Section 287.133(3)(b), Florida Statutes with the DMS by letter dated March 24, 1992, together with exhibits attached thereto. The letter specifically referred to the criminal information filed against General and the judgement entered by the Federal District Court. A copy of the criminal information and judgement were enclosed with the letter, together with a copy of correspondence between MISSCO and the GSA. Jt. Stips. pp. 8-9, Appen. at pp. 37-39. In response to a request dated April 15, 1992 from the DMS for additional information, MISSCO promptly furnished all such information. Jt. Stips. p. 9. At its meeting held December 17, 1992, the Board of Directors of MISSCO was convened and all of the offices then held by Mr. James T. Majure, former President of General, were declared vacant and other persons were elected to those positions. Jt. Stips. p. 7, Appen. at pp. 2, 67, 70. Mr. Charles Wright was retired from General under a medical disability prior to 1990. Jt. Stips. p. 7. MISSCO Corporation fully cooperated with the GSA by proposing and implementing remedial measures including the presentation of an Ethics Seminar by Mr. Norman Roberts, past chairman of the American Bar Association's section on government contracting. Jt. Stips. p. 7. MISSCO revised its corporate Code of Ethics, revised its Employee Handbook, installed an 800 hotline telephone number permitting employees to communicate any concerns regarding business ethics, designated a Corporate Vice President as the Ethics Compliance Officer, appointed a committee of three corporate executives to monitor corporate business activities, and revised its internal audit procedures to insure that no cash is unaccounted for which might be used for the purpose of kickbacks. Jt. Stips. pp. 7-8, Appen. at pp. 28-33, 62-63. MISSCO's management undertook prompt and verifiable action to comply with the restrictions imposed on MISSCO's business dealings with the government after notices of proposed debarment. General promptly and voluntarily withdrew from the GSA contract that was tainted by the submission of a fabricated commercial price list during negotiations. Jt. Stips. p. 8. MISSCO had a code of business ethics in place when the circumstances leading to General's conviction arose. The code was amended following the initiation of debarment proceedings to specifically address the importance of truthful certifications and providing accurate information in connection with business transactions with the government. Jt. Stips. p. 8. MISSCO substantially expanded its corporate ethics compliance program and undertook extensive training in business ethics. A detailed "ethics audit" was undertaken by MISSCO, and the results of this audit were provided to the GSA. Jt. Stips. p. 8, Appen. at pp. 10-22, 28-34. General sells its products through a dealer network and not through factory direct sales. General has a dealer agreement with Interstate of Florida for the sale of its products in Florida to private and public entities. Jt. Stips. p. 9. Interstate of Florida, a division of MISSCO Corporation of Jackson, is a dealer (re-seller) of General's products. There are other dealers throughout the United States which also market and sell General's products. Interstate of Florida had gross sales of approximately $6.8 million in fiscal year 1990-91. Approximately 99 percent of those sales were to public entities. Jt. Stips. p. 9. Interstate of Florida is primarily an educational sales company which sells educational contract furnishings such as laboratory casework, auditorium seating, and folding bleachers. It has conducted business with almost every school district in Florida. The largest transactions have been conducted with the school districts of Dade and Orange Counties in Florida. The largest municipal transactions have been conducted with the City of Tallahassee. Jt. Stips. p. 10.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department not place the names of the Petitioners on the Florida Convicted Vendor List. DONE and ENTERED this 29th day of July, 1993, in Tallahassee, Florida. 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 29th day of July, 1993. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Susan B. Kirkland, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 C. Graham Carothers, Esquire Ausley, McMullen, McGehee Carothers & Proctor Post Office Box 391 Tallahassee, FL 32392 Terry A. Stepp, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue is whether Respondent improperly withheld points, in scoring Petitioner's application, for proximity to a grocery store, so as to improperly deny Petitioner an opportunity to enter the credit underwriting phase of the process by which Respondent allocated federal income tax credits for low-income housing projects in the 2006 funding cycle. (Pursuant to Florida Administrative Code Rule 67-48.005(4), Respondent would send Petitioner's proposal to credit underwriting for the 2007 funding cycle, if Petitioner proves that Respondent improperly scored Petitioner's application in the 2006 funding cycle, which is now closed by operation of federal law.)
Findings Of Fact This case involves the 2006 funding cycle of Respondent's Housing Credit program. In this program, Respondent allocates nine percent low-income housing, federal income tax credits to various developers and investors based on their proposals to construct qualified affordable rental housing units in Florida. Because the demand for federal income tax credits allocated to Florida exceeds the supply of such credits, Respondent has adopted an elaborate scoring program, supplemented with tie-breaker points and lottery numbers, to evaluate competitively the various proposals. On February 1, 2006, Petitioner timely filed its application for an allocation of federal income tax credits under the Housing Credit program (Application). The Application seeks an allocation of federal income tax credits in the Large County set-aside for the construction of a 132-unit apartment complex in Miami. Sufficient applications routinely receive maximum scores that Respondent has had to adopt tie-breaking criteria to differentiate between those proposals that may enter credit underwriting and those proposals that may not, due to the lack of available federal income tax credits. These criteria involve the proximity of the proposed project to certain services or facilities, such as public transit, medical clinics, and grocery stores. Sufficient applications routinely receive all of the tie-breaker points that Respondent has had to assign lottery numbers to further differentiate between those proposals that may enter credit underwriting and those proposals that may not. The sole issue in this case is the proximity of the project proposed by Petitioner to a grocery store. Petitioner's proposal received the maximum score, exclusive of the tie- breaker score. Petitioner's proposal received a lottery number that, if its proposal earned the grocery-store tie breaker points, it would enter credit underwriting. Page 14 of the application instructions defines a "grocery store" as: a retail establishment, open to the public, . . . consisting of 4,500 square feet or more of air conditioned space, which as its major retail function sells groceries, including foodstuffs, fresh and packaged meats, produce and dairy products, which are intended for consumption off-premises, and household supplies . . .. Page 15 of the application instructions requires that the grocery store "must be in existence and available for use by the general public as of the [a]pplication [d]eadline." The application deadline for the 2006 funding cycle was February 1, 2006, so the characteristics of the grocery store identified by Petitioner are fixed as of February 1. By letter dated March 2, 2006, Respondent informed Petitioner that it was withholding 1.25 points from its tie- breaker score due to Petitioner's failure to provide the required information as to the proximity of its proposed project to a grocery store. Pursuant to its procedures, Respondent gave Petitioner an opportunity to submit "cure" documentation to demonstrate Petitioner's entitlement to the 1.25 points for proximity to a grocery store. The submittal of "cure" documentation may address issues raised in Respondent's preliminary review of an application but does not extend the date on which the grocery store must be in existence. On April 10, 2006, Petitioner timely filed "cure" documentation identifying the subject grocery store as the Mas Unidos Market at 832 Southeast 8th Street. Accompanying materials indicated that the air-conditioned space was 4547 square feet. By letter dated May 4, 2006, Respondent advised Petitioner that it would receive no points for the proximity of the proposed project to a grocery store because the grocery store identified by Petitioner had less than 4500 square feet of air-conditioned space available to the public. In its final scoring summary, Respondent found that the subject market had less than 4500 square feet of air-conditioned space available to the public. There is no issue as to the proximity of the subject grocery store to the proposed project. The question is whether the subject grocery store meets the definition of a grocery store, as of the application deadline. A sketch that Petitioner submitted to Respondent assists in the analysis. The sketch depicts a 3891 square foot area (Primary Space), which meets all criteria. The Primary Space contains groceries and was air-conditioned and available to the public as of the application deadline. A 656-square-foot area (Additional Space) is separated from the Primary Space by a storage area. If the Additional Space counts toward the area of the grocery store, the subject grocery store would meet Respondent's definition because the Primary Space and Additional Space total 4547 square feet. The owner of the subject grocery store operates a single business from the Primary Space and Additional Space. In doing so, he employs a single set of employees, maintains a single set of financial books, and operates under a single occupational license. On the other hand, the Additional Space is not accessible from the Primary Space, due to the storage area that divides the two areas. The owner of the subject grocery store intends to convert the storage area into a cafeteria, so as to permit interior access between the two spaces, but no such renovation had taken place as of the application deadline. At present, a customer seeking to purchase goods from both spaces must pay for his goods at the one space, leave through the front door, walk a short distance along a sidewalk immediately in front of the two spaces (which occupy a small strip mall), enter the front door of the other space, and pay for his purchases in the other space. Also, the Primary Space contains typical grocery items, but the Additional Space contains items more typically associated with hardware stores. However, these factors, according to an employee of Respondent who testified at the hearing, do not preclude a determination that the Additional Space is part of a grocery store. But the problem with the Additional Space is that it was not available to the public as of the application deadline. The owner of the subject grocery store commenced retail operations in the Additional Space in the fall of 2005, which was prior to the application deadline. However, due to hurricane damage from the 2005 storms, the owner closed the Additional Space for repairs in late 2005 through mid- to late- February 2006, which was after the application deadline. The Additional Space was thus in existence and available to the public as of the application deadline, and Respondent properly excluded the area of the Additional Space in determining whether the store satisfied, as of the application deadline, the criteria of 4500 square feet available to the public. Petitioner contends that the temporary loss of the Additional Space, due to ongoing repairs, should not cause its exclusion from the calculation. The problem with this argument is that it is impossible for Respondent to determine with reasonable certainty whether the owner will complete repairs and reopen the space as a retail grocery operation. The requirement that the space be available to the public on a specific date provides a clear test that is easily administered. The modified requirement for which Petitioner contends creates uncertainty and invites contention as to whether certain space was under repair, the extent of repairs left to complete as of the application deadline, and similar issues that promise prolific litigation, not efficient administration, of the proximity- scoring item. Respondent contends that, if the Additional Space were included, the subject grocery store fails to satisfy the area criterion because the office space behind the Primary Space should not have been included as available to the public. The evidence does not support this contention, although the treatment of the Additional Space in the Recommended Order moots this issue. Directly accessible from the Primary Space, the office space, which totals 107.69 square feet, is separated from the Primary Space by a locked gate. The owner conducts business with customers within the office space, but he must determine, for each customer, whether he wishes to remotely unlock the gate and allow the customer to enter the office space for such purposes as cashing a check. In most cases, the owner makes this determination by viewing the customer through a camera mounted at the gate. If in doubt, the owner leaves the office and meets the customer before escorting the customer to the office, where sums of cash are kept. The security is necessitated by the location of the subject grocery store in a neighborhood afflicted by crime. The presence of the locked gate has not caused Respondent to contend that the adjacent customer bathroom, which is also behind the gate, should not be counted as part of the grocery store, nor should it have this effect as to the office space behind the gate. Petitioner contends that the hallway and bathroom behind the Additional Space should have been included in the area of the subject grocery store. If these areas had been available to the public on the application deadline, this contention would be correct, but the hallway and bathroom were also unavailable to the public on this date. Even if they were included, the total area of the subject grocery store would be only 4085.99 square feet, consisting of 3891 square feet of Primary Space, 107.69 square feet of office space behind the Primary Space, and 87.3 square feet of hallway and bathroom behind the Additional Space. Petitioner has thus failed to prove that it is entitled to any tie-breaker points for proximity to a grocery store.
Recommendation It is RECOMMENDED that the Florida Housing Finance Corporation enter a final order dismissing the Petition Requesting Informal Hearing and Grant of the Relief Requested. DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2006. COPIES FURNISHED: Hugh R. Brown, Deputy General Counsel Wellington Meffert, II, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Sherry Green, Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Stephen T. Maher Gary Cohen Shutts & Bowen LLP 201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131
Findings Of Fact On July 2nd, 1974, Closet Maid Corporation (CMC) acquired Beechcraft model BCO from Elliott Flying Service under an agreement which was not introduced into evidence at this hearing. Respondent contends that this is a lease agreement with option to purchase at the expiration of sixty (60) months. Exhibit 3 is a transfer of CMC's interest in this aircraft to NOS Corporation. The Notice of Proposed Assessment (Exhibit 1) claims a tax due of $9,633.70, penalties of $481.69, and interest of $1,011.54 or a total tax due of $11,126.93. The accuracy of this sum was not contested. CMC is a corporation the majority of whose stock is owned by Norman Sauer. NOS Corporation was formed to be the transferee of CMC's interest in the airplane and the stock of NOS is wholly owned by Sauer. CMC and Nodorana Farms, another corporation wholly owned by Sauer, entered into agreements with NOS to lease back the aircraft at a guaranteed minimum monthly rental in excess of $8,000.00, which will provide NOS with sufficient revenues to make the monthly payments on the aircraft of $4,214.89 plus operating expenses. Elliott Flying Service is the registered owner of the aircraft. The only documentary evidence presented regarding the agreement between CMC and Elliott Flying Service is Exhibit 3. Exhibit 3 is a Beech Acceptance Corporation, Inc. (BAC) Transfer of Interest Agreement form which states that the "note, conditional sale contract, lease, chattel mortgage, or other security agreement, herein called 'Instrument'", representing the agreement between CMC and Elliott, requires the consent of BAC for its transfer to NOS. At the date shown on Exhibit 3 of August 1st, 1976, Exhibit 3 recites the balance due on the aircraft of $240,842.39 "is payable in forty-seven (47) consecutive monthly installments of $4,214.89 each, first installment payable August 2nd, 1976, and one final installment of $42,742.56." Exhibit 3 further shows BAC to be the assignee of the "instrument" executed between CMC and Elliott. Exhibit 2C is headed NOS CORPORATION and shows monthly aircraft expenses. Included therein is depreciation of $2480.00 and interest expense of $2192.00. Accounting procedures prescribed by AICPA provide that equipment held on long term lease be capitalized. Accordingly, essentially the same accounting procedures would be used whether the aircraft was obtained on lease or conditional sales contract.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensure and regulation of real estate brokers and salespersons in the State of Florida pursuant to chapters 455 and 475, Florida Statutes. At all times material to this action, Respondent was licensed a real estate sales associate in the State of Florida. On November 18, 2010, Petitioner filed an Administrative Complaint against Respondent, which reads in pertinent part: On or about October 5, 2007, Respondent prepared a sales purchase contract on behalf of Anne Vincent (Buyer) and Donald Gilchrest (Seller) for a property known as 6521 SW 9th Street, Pembroke Pines, Florida 33023 for $250,000. Respondent represented in the sales and purchase contract for the Subject Property that a $2,000 deposit was held in escrow by Title Sense Inc. Respondent communicated to the Sellers that he had received a check in the amount of $2,000 from the Buyer. * * * 10. Respondent failed to place with Respondent's registered employer any funds entrusted to Respondent by the Buyer for the Subject Property. * * * 12. Respondent failed to deliver a copy of the sales and purchase contract to Respondent's Broker, Edgar Rhenals. Based upon the foregoing, Petitioner alleged that Respondent violated section 475.25 (1)(b), (1)(e), and (1)(k), Florida Statutes, as well as Florida Administrative Code Rule 61J2-14.009. As discussed in the preliminary statement of this Recommended Order, Petitioner's sole witness at the final hearing was Ms. Krystal Cordo, an investigator employed with the Division of Real Estate. Other than Ms. Cordo's description of statements made by Respondent during the investigation——in which Respondent denied all wrongdoing——Ms. Cordo's testimony and investigative report consisted entirely of hearsay, with no applicable hearsay exceptions. In light of the complete absence of incriminating non-hearsay evidence, Petitioner properly conceded that Respondent's guilt could not be established in connection with any of the charges.2 Accordingly, the undersigned finds, as a matter of ultimate fact, that Respondent is not guilty of Counts I, II, and III of the Administrative Complaint.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 28th day of March, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 28th day of March, 2011.
Findings Of Fact The Board and its program. The Florida Prepaid Post-Secondary Education Expense Board (Board) is an agency which administers the Florida Prepaid College Program. The Board sells advance payment contracts for tuition and dormitory expenses at Florida post- secondary education institutions. The Board is required by Section 240.551(8)(a), Florida Statutes (1991), to contract with a records administrator to conduct the day-to-day operations of its program. The Petitioner, BTI Services, Inc. (Barnett), is the current records administrator. BTI Services, Inc., is affiliated with Barnett Bank. The Board issued its Request for Proposal Number 92-1 on July 31, 1992, seeking a records administrator for a 3- year contract term with the option to renew the contract for further periods. The following portions of the Request for Proposal (RFP) bear upon the responsiveness of the proposals submitted by the parties: SECTION I GENERAL INFORMATION * * * 1.4 Period of Contract The duration of any contract resulting from this RFP shall be for three (3) years from the date of its execution. The current records administration contract expires on June 30, 1993. Respondent shall be completely operational on July 1, 1993. It is the intent of the Board to review and define necessary services at the end of three (3) years. Respondents shall submit in their response to this RFP, the terms and conditions for service in additional years. The Board reserves the option to renew the contract or any portion of the contract under the terms and conditions set forth in this RFP or any other such conditions as may be negotiated between the parties for two additional one (1) year periods. Renewal shall be contingent upon, among other things, availability of funds, continued need, and satisfactory performance by the successful Respondent. Moreover, the contract is subject to an annual performance evaluation of the successful firm. * * * Proposal Opening It is the Respondent's responsibility to assure that its proposal is delivered at the proper time and place of the proposal opening. Proposals which, for any reason, are not timely delivered will not be considered. Late proposals will not be accepted; they will be returned unopened to the Respondent. Offers by facsimile or telephone are not acceptable. A proposal may not be altered after opening. [Emphasis in original] Acceptance of Proposal by Board The Board reserves the right to accept or reject any and all proposals and to award the issuing contract in the best interest of the State of Florida. * * * 1.17 Restrictions on Communications with Board Staff From the date this RFP is issued until a determination is made, the only Respondent- initiated contact related to this RFP allowed between Respondent and any member of the Prepaid Postsecondary Education Expense Board, or member of the Board staff, is during the prebidder's conference. Any unauthorized contact may disqualify the Respondent from further consideration. * * * SECTION III INFORMATION REQUIRED FROM RESPONDING PROPOSERS 3.2 Sufficiency of Response Respondent's proposal must be submitted in the format outlined below. There should be no attachments, enclosures or exhibits other than those considered by the Respondent to be essential to a complete understanding of the proposal submitted. Each section of the proposal must be clearly identified with appropriate headings. . . . * * * F. Price Proposal The information requested in this section is required to support the reasonableness of the Respondent's quotation. THIS PORTION OF THE PROPOSAL MUST BE LABELED, THEN BOUND SEPARATELY FROM THE REMAINDER OF THE PROPOSAL. The price proposal shall be in the format as described in exhibit "D", Price Proposal Worksheet. Any deviation from the worksheet format or instructions will be cause for rejection of the proposal. Respondent shall also provide specific Records Administrator charge rates as referenced in Section 2.2(F)(13) for such items as computer programming, etc. * * * 3.7 Regulatory Restrictions and Litigation Each Respondent must describe in detail any past or pending regulatory restrictions, consent orders, stipulations or litigation to which the Respondent or any of its principals, owners, directors or officers has ever been a party that would affect its ability to provide the required services. Respondents must indicate if any officers, principals, owners or directors have been convicted of a felony. If so, a detailed description of each incident must be included. Respondent must also indicate whether or not any liquidated damages have ever been imposed against the Respondent for the untimely completion of any task required by the terms of any contract for services entered into between the Respondent and any other entity during the past five (5) years. If so, a detailed description of each such incident, including the amount of liquidated damages imposed, must be included. Respondent must execute a sworn statement on public entity crimes, exhibit "F." SECTION IV MANDATORY REQUIREMENTS Introduction The Board has established certain mandatory requirements which must be included as a part of any submitted proposal. The use of "shall," "must," or "will" (except to indicate simple futurity) in this RFP indicates a mandatory requirement or condition. The words "should" or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable will not by itself cause rejection of a proposal. The right is reserved to determine which Respondents have met the basic requirements of this RFP, and to determine whether any deviation from the requirements of the specifications, terms and conditions contained herein is merely minor or technical in nature; the right to accept bids which deviate in minor or technical fashion is also reserved. Only those Respondents who have met the basic requirements of this RFP will be considered; any Respondent who has not done so will be rejected. The right is reserved to reject any or all proposals. Failure to meet any contractual obligations may result in cancellation of any award. Mandatory Criteria Specific attention is directed to the following mandatory provisions contained in this RFP. Each Respondent must comply with each of these provisions and present an index citing the page number within its proposal that fulfills these mandatory provisions. Failure to comply with these mandatory provi sions is sufficient cause to disqualify the proposal without further evaluation or consideration. [Emphasis in original] Each Respondent must provide evidence of, or expressly indicate a willingness and ability to meet, the following mandatory criteria: RFP Section Numbers Provisions 1.9 Proposals to be signed and sealed 1.13 Primary responsibility for delivering services 1.19 Annual appropriations 2.1-2.2 Scope of services requested 2.3 Control Identification of Respondent Sufficiency of response Copies of proposals Financial information Regulatory Restrictions and Litigation 6.1 General terms 6.2(A)-6.2(BB) Contents of contract SECTION IV EVALUATION Proposal Submission Only proposals submitted in the time frame stated herein and with the content as required by this RFP will be reviewed and considered by Board staff and the Board. Evaluation Criteria If Respondent does not meet all of the mandatory requirements set forth in Section IV above, such proposal may be rejected by the Board as nonresponsive. The Board seeks to contract for services described herein with the responding firm who submits the best proposal. The written proposals will be evaluated by Board staff and rankings submitted to the Board will utilize the following 100 point grading system. A. Price (35 points)--Fees and other costs charged to purchasers that affect account values or operational costs related to the program will be evaluated. THIS PORTION OF THE PROPOSAL MUST BE LABELED, THEN BOUND AND SEALED SEPARATELY FROM THE REMAINDER OF THE PROPOSAL. The fees proposed must be in the format as described in exhibit "D", Price Proposal Worksheet. Any deviation from the worksheet format or instructions will be cause for rejection of Respondent's proposal. * * * C. Personnel and Computer Capability (20 points)--The proposal shall clearly describe the background, quality and level of expertise of Respondent's staff and affirmatively state agreement with the provisions of Section 1.13, 2.2(A)(7), 2.2(A)(8), 2.2(G), 2.3, 3.2(A)-(C) and 6.2(A)-(BB). Computer capability for the scope and level of service described in paragraph 2.2 shall be evaluated. North American Financial Services, Ltd. (North American), International ComputaPrint Corporation (ICC), and Barnett submitted timely responses to the RFP which were opened by Board staff on September 30, 1992. The response of Barnett was voluminous, containing about 1,000 pages in three bound volumes. The proposal submitted by Barnett omitted 35 pages, numbered C-129 through C-164, which contained information concerning Barnett's computer capabilities. The index required by Section 4.2 of the RFP submitted with Barnett's proposal showed that the missing pages were responses to Criteria 2.2(G)6 through 2.2(G)13, which were mandatory criteria under Sections 4.2 and 5.2(C) of the RFP. These pages described the computer services to be provided during the contract term which would commence in July of 1993. Barnett's index did not indicate that the necessary response to Section 2.2 of the Board's RFP could be found in any other portions of its proposal. Because Barnett is the Board's current records administrator, Board staff knew of Barnett's current computer capabilities. What the RFP required, however, was an offer of services to be provided during the new contract term. Staff members could have drawn on their familiarity with Barnett as an existing vendor, but it would be improper for the staff to evaluate the proposal based on Barnett's current services, as they were not necessarily ones Barnett proposed to provide in the future. The discovery that pages were omitted from the Barnett proposal caused Board staff to carefully go through the proposals received from North American and ICC and, in the process of doing so, staff found in them certain defects and omissions. Neither of those proposals omitted entire sections of responses required by the RFP, however. The North American proposal omitted pricing for the two option years after the three-year base contract, which had been requested by Section 1.4 of the RFP, and failed to respond fully to Section 3.7 of the RFP, which sought a detailed description of any past or pending regulatory restrictions, consent orders, stipulations or litigation to which the bidder or any of its officers or directors had been a party which would affect the bidder's ability to provide services to the Board. The response of ICC failed to address sections of the RFP involving the contents of the contract for services. The Board 's Executive Director sent letters to all three bidders on October 26, 1992, requesting that they file the omitted materials or supplement deficient items, and offer a full explanation of why that information had not been included in their initial submissions. Each bidder then submitted a letter of explanation and the supplemental information Board staff requested. Board staff referred all three proposals, together with the supplemental information, to an evaluation committee for review, evaluation, and ranking. Under the evaluation procedure described in Section V of the RFP, a total of 300 points (100 per evaluator) could be awarded to a bidder. The committee ranked Barnett's proposal first, awarding 276 points; North American's second with 270 points; and ICC's third with 257 points. The total projected three-year costs based on each bid were: Barnett - $9,389,887; ICC - $7,789,259; North American - $7,977,564 (Barnett Exhibit 8, attachment 4, page 4, paragraph C). The evaluation was brought to the Board at its meeting on December 15, 1992. Barnett's initial proposal and supplemental response. Section 4.2 of the RFP required that every proposal include an index, citing the page numbers which addressed mandatory provisions of the RFP. It was obvious that the responses would be large, and Board staff is small. Staff could not search through proposals to try to determine whether information submitted was meant to satisfy a mandatory provision of the RFP. Bidders' attention had been specifically directed in Sections 4.1 and 4.2 of the RFP to the mandatory indexing requirements. They had notice that failure to respond to the section of the RFP dealing with the scope of services requested, or with any other specifically designated mandatory requirement, would be "sufficient cause to disqualify the proposal without further evaluation or consideration" (RFP, Section 4.2). At final hearing, Barnett identified for the first time pages within its proposal which it claimed responded to the mandatory requirements of Sections 2.2(G)6 through 2.2(G)13 of the RFP. This new index was never provided to members of the evaluation committee, for it did not exist then. It is not clear that the pages identified in this new index actually respond to the requirements of Sections 2.2(G)16 to 2.2(G)13, for no witness at the final hearing testified that they did. The submission of this new index evidences a misunderstanding of the purpose of this hearing, however. The question presented is not whether Barnett now can identify portions of its original submission which responded to mandatory requirements of the RFP. Those pages of its original submission were not indexed for the use of the evaluation committee. The Hearing Officer cannot act as a member of the bid evaluation committee and make some de novo, independent determination of the sufficiency of this new index. The only purpose of the index was to permit evaluation of the proposal, something the Hearing Officer cannot do. When Barnett replied with its letter of explanation, it included what it then characterized as the "9 copies of pages C-129 through C-164" originally required, explaining that "these pages were intended to be included in [Barnett's] response" as evidenced by "the detailed table of contents and cross- reference provided" in its initial response (North American Exhibit 4). Barnett blamed the omission on a photocopying error. Barnett's letter did not tell the Board that changes had been made to these 35 pages. They were not the pages Barnett originally intended to include with its response to the RFP, but amended pages which did not exist on the bid opening date in the form submitted on October 30, 1992 (Tr. 69, 77). Barnett's changes were due, at least in part, to Barnett's review of the North American and ICC proposals opened on September 30, 1992, and its analysis of what it believed were "overall deficiencies" in them (Moorer Deposition at 28). Barnett knew from comments by Board staff that its price proposal was about 20% higher than the other proposals (Moorer Deposition at 40). The evidence is unsatisfactory on just who initiated this discussion. Had Barnett done so, it would have been in violation of Section 1.17 of the RFP, which prohibited vendor initial contact with Board staff on the substance of the proposals before a proposal was selected by the Board. The most significant change Barnett made in the revised 35 pages offered to "serialize" dormitory and tuition accounts. Other changes referred to software modifications Board staff and Barnett were already working on. This was an attempt to increase its score under the evaluation criteria found in Section 5.2(A) of the RFP. To the extent that Mr. Stabler was careful, at final hearing, to deny that the new "serialization" proposal was a price change, but merely created a potential for a price reduction, that testimony is unconvincing. Mr. Stabler acknowledged during his deposition that the effect of serialization, if implemented, would be to cut substantially the cost to the Board for handling contracts which included payments for both tuition and dormitory space. The changes also emphasized the programming ability of Barnett, for after review of the other proposals Barnett believed that those bidders had placed too much emphasis on hardware capability and too little on programing ability. These changes were designed to enhance Barnett's competitiveness in the technical areas of personnel and computer capabilities under the evaluation criteria found in Section 5.2(C) of the RFP (Moorer Deposition at 37). Board staff recognized that the offer to provide a serialization computer program was new, and realized it could reduce the costs paid by the Board. The evaluators did not include the serialization proposal in its evaluation, because staff regarded it as an inappropriate attempt to modify price. The evaluation committee did award points for other parts of the 35 pages submitted with Barnett's October 30, 1992, letter of explanation. North American's initial proposal and supplemental response The price proposal which North American submitted used the Board's price proposal worksheet, the form specifically required by Section 3.2(F) of the RFP, which tells bidders: "Any deviation from the worksheet format or instructions will be cause for rejection of the proposal." The Board's worksheet has no space for supplying separate "option year" pricing information, even though Section 1.4 of the RFP indicated that the Board wanted pricing for a three-year base period and for two additional one-year option periods. The usefulness of the option year prices is problematic, for Section 1.4 of the RFP stated the Board's intent to redefine the services to be provided at the end of the three-year base contract, which would require a price renegotiation. The way the Board's worksheet is set up, charges are based upon the number of tuition and dormitory accounts serviced, not upon a "per year" charge. Nothing in the price worksheet or Section 3.2 of the RFP mention the possibility of stating an option year price separately from the price for the base three-year term. The Board staff did not mention the omission of option year pricing as a deficiency in the October 26, 1992, omissions letter. North American's proposal did not deviate from the worksheet format or instructions. Nothing in the RFP required that the option year prices be separately stated if no price change in the option years was proposed. North American contends that its price was good for the initial contract term and for the renewal periods. While this is somewhat self-serving, it is also consistent with the required format of the price proposal worksheet. The fundamental problem is the RFP's internal inconsistency. The request that the bidder include the terms and conditions for service in the option years (the fourth and fifth years) appears in the general information section of the RFP. But the price proposal worksheet, part of Section 3.2 of the RFP, has no place to enter option year price information. This inconsistency probably went unnoticed by Board staff because they placed no importance on the option year pricing. It has been the Board's practice to circulate a new Request For Proposal at the end of each three-year period and to negotiate new services and prices at the end of that base term. The text of Section 1.4 is consistent with this practice. The Board was focusing on the selection of a vendor to provide services during the three-year base period of the contract. The evaluation committee never considered the option year pricing in its scoring. Had it done so, it would have been a detriment to Barnett, for it already had the highest price proposal. The two other bidders had not proposed any price increase for the "option years," while Barnett had proposed an 8% price increase for those years. Because the Board's past practice has been not to rely on the option year pricing to extend contracts for the records administrator beyond the base period, North American gained no advantage in the evaluation process by failing to specifically include option year pricing, which was not called for on the required price proposal worksheet. The initial response of North American contained the sworn statement on public entity crimes required by Section 3.7 of the RFP. The submission said nothing about any past or pending regulatory restrictions, consent orders, stipulations or litigation to which North American or its officers or directors had been a party which would affect its ability to provide the required services. What is most significant is that the opening phrase of Section 3.7 requires the bidder to "describe in detail" any such matters. North American indicated by its response to the October 26, 1992, omissions letter that it had nothing to say on the subject because there were no such restrictions which it could describe (North American Exhibit 6, final page). There is no evidence that there are any restrictions which North American should have described, but did not. Another portion of Section 3.7 of the RFP required bidders to indicate "whether or not" liquidated damages had been imposed against them in the past five years for failure to meet contract obligations. Arguably, this sentence could require the response that no such damages had ever been imposed. As with the regulatory restrictions, there is no evidence that any liquidated damages had been imposed against North American in the last five years which should have been disclosed, but were not. Read together, however, it was not unreasonable for North American to say nothing in response to these portions of the RFP. North American concealed nothing by its failure to respond in the negative to Section 3.7. It gained no advantage as a result of its interpretation that the text of the section required no response from it. Its supplemental submission did not affect its bid price. Action by the Board After staff evaluated and ranked the proposals, they were submitted to the Board for formal action. The Board decided to reject the Barnett proposal as nonresponsive because the initial proposal had omitted 35 pages of mandatory information. The omission was properly chargeable to Barnett's neglect to verify that all pages required were being submitted to the Board. Although the Board did not know it, Barnett had altered the pages it submitted after its competitors' bids had been opened, in a manner designed to enhance Barnett's bid. The Board accepted the North American proposal as responsive and indicated its intention to negotiate with North American as the highest ranked responsive bidder. The Board was persuaded by North American's explanation of its failure to include specific option year pricing and failure to state that there were no applicable regulatory restrictions or instances where liquidated damages had been imposed, because there were none. The Board believed that North American had made an understandable interpretation of the Board's RFP, and that North American gained no advantage over any other bidder as the result of those omissions. Barnett filed a timely protest and formal written protest of the Board's action under Section 120.53(5), Florida Statutes (1991).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Prepaid Post-Secondary Education Expense Board rejecting the protest of BTI Services, Inc., and ordering staff to negotiate a contract with North American Financial Services, Ltd. DONE AND ENTERED in Tallahassee, Leon County, Florida, this day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0180BID The following constitute my rulings on proposed findings of fact submitted by the parties, as required by Section 120.59(2), Florida Statutes (1991). Rulings on findings proposed by Barnett: Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Sentences 1 and 2 adopted in Finding of Fact 4. Sentence 3 rejected for the reasons stated in Finding of Fact 3. The final sentence is rejected as irrelevant. Rejected because in its prehearing stipulation Barnett challenged only North American's failure to include option year pricing and to respond to the inquiry on regulatory restrictions. See also Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Findings of Fact 9 and 13-15. Sentences 1 and 2 adopted in Finding 14. The remainder is rejected for the reasons stated in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 10 and 16. Rejected for the reasons stated in Findings of Fact 19 and 20. Generally accepted in Finding of Fact 24. The final sentence is rejected for the reasons stated in Finding of Fact 23. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. 15 & 16. Addressed in preliminary statement. Rulings of findings proposed by the Board: 1 & 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 1. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7 & 8. Adopted in Finding of Fact 6. 9-13. Adopted in Finding of Fact 9. 14. Adopted in Finding of Fact 11. 15. Adopted in Finding of Fact 5. 16. Adopted in Finding of Fact 4. 17 & 18. Adopted in Finding of Fact 11. 19. Adopted in Finding of Fact 13. Generally adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 22 & 23. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 6 and 9. Generally adopted in Findings of Fact 9 and 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 17. Generally adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Implicit in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. Adopted in Findings of Fact 18, 19 and 21. Adopted in Findings of Fact 2 and 23. Adopted in Finding of Fact 23. 38-40. Adopted in Findings of Fact 10 and 24. Adopted in Finding of Fact 26. Addressed in the Conclusions of Law. Rulings on findings proposed by North American: Adopted in Finding of Fact 1. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. II.1. Adopted in Finding of Fact 4. Adopted in Finding of Fact 11. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Generally adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Finding of Fact 13. Adopted in Findings of Fact 14 and 15. Adopted in Finding of Fact 16, although it is not clear that 2.5 millions dollars would be saved over the three-year base term of the contract. Adopted in Finding of Fact 14. Addressed in Conclusions of Law 44. Adopted in Finding of Fact 16. Implicit in Finding of Fact 13. Adopted in Finding of Fact 12. Implicit in Finding of Fact 16. Implicit in Finding of Fact 12. 17-26. Unnecessary for the reasons stated in Finding of Fact 12. Generally accepted in Findings of Fact 5 and 11. Generally accepted in Finding of Fact 10. III 1. Adopted in Findings of Fact 3, 7 Generally adopted in Finding of Fact 23. Unnecessary, covered in the prehearing stipulation. III A.1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 19. Generally adopted in Finding of Fact 18. Adopted in Finding of Fact 2. Implicit in Findings of Fact 18 and 20, when read together. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. III B.1. Adopted in Finding of Fact 22. Adopted in Finding of Fact 2. Adopted in Findings of Fact 2 and 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. IV 1. Adopted in Findings of Fact 10, 24 and 25. 2. Adopted in Finding of Fact 26. COPIES FURNISHED: Robert J. Winicki, Esquire Mahoney, Adams & Criser, P.A. 50 North Laura Street, Suite 3300 Jacksonville, Florida 32202 Geoffrey Smith, Esquire Blank, Rigsby & Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Paul Ezatoff, Esquire Katz, Kutter, Haigler, Alderman, Davis & Marks, P.A. 106 East College Avenue Tallahassee, Florida 32301 Mr. William W. Montjoy, Executive Director Florida Prepaid Postsecondary Education Expense Board 345 South Magnolia Drive, Suite D-13 Tallahassee, Florida 32301
The Issue The issue is whether Respondent Allen’s Sod Service owes Petitioner Lake Jem Farms, Inc., money for grass sod.
Findings Of Fact Before the transaction of business which is the subject of this proceeding, Petitioner’s predecessor sold lawn sod to Respondent over a period of time. Petitioner and Respondent verbally agreed that payment of Respondent’s indebtedness to Petitioner would be forthcoming upon Respondent’s retirement of indebtedness to Petitioner’s predecessor. Despite this condition of payment to Petitioner’s predecessor, Respondent nevertheless made payments to Petitioner for grass sod, thereby effectively waiving the condition with regard to amounts presently owed to Petitioner. Respondent made 24 purchases of sod from Petitioner during the months of August and September 1999, and paid Petitioner for 18 of the sod purchases. Six purchases remained unpaid for a total of $6,244.52 owed to Petitioner by Respondent. Respondent’s representative claimed at final hearing that certain sod purchases were defective, but admitted the six sod purchases for which money was still owed to Petitioner, were not among the defective purchases. Other than the allegations of other defective sod purchases, Respondent’s representative presented no direct, competent evidence of the existence of the defective products. Additionally, the evidence establishes that Respondent’s representative signed for each individual load of sod, certifying that the sod was acceptable. Thereafter each sod purchase entered into possession of Respondent’s employee for transport to the work site.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner the sum of $6,244.52, which, if unpaid, is due from Respondent Fidelity & Deposit Company Of Maryland under the bond. DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2000. COPIES FURNISHED: Michael A. Croak, Esquire 14229 U.S. Highway 441 Tavares, Florida 32778 Rena Weekly, Qualified Representative Allen’s Sod Service 8148 Southeast 147th Place Summerfield, Florida 34491 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issues in this case are whether Respondent owes an additional surcharge tax liability on the sale of alcoholic beverages and, if so, how much and what penalties should be imposed.
Findings Of Fact Respondent is licensed by Petitioner as an alcoholic beverage vendor. Since January 1982, Respondent has held a 4COP license, which permits him to operate a package store, in which beer, wine, and liquor are sold for consumption off premises, and a bar, in which these alcoholic beverages are sold for consumption on the premises. Respondent sells beer, wine, and liquor for consumption on and off premises at a place of business known as Big Still Liquors, which is located at 1042 N. Tamiami Trail, North Ft. Myers. The Legislature introduced the surcharge in 1990. By Form DBR 44-005E, which is called "Election of Surcharge Payment Method and Certified Inventory Report," Respondent elected an accounting method by which to track and report sales of alcoholic beverages subject to the surcharge. On July 9, 1990, Respondent checked the box on the form that states: "I hereby permanently elect to pay future surcharges based upon purchases." The other alternative on the form is the sales method, in which the surcharge is calculated directly from retail sales. The sales method requires that the vendor record at retail the gallonage, as well as sales price. Also, the vendor must distinguish among beer, wine, and liquor sold at retail. Like most vendors, however, Respondent records sales by sales price, not volume. The issues in this case arise out of two factors. First, the surcharge applies to volume of alcoholic beverages, not the sales price or purchase cost. As noted above, Respondent's sales records are expressed in dollars. Second, the surcharge applies to alcoholic beverages sold for consumption on premises, not to package sales. Although purchases from wholesalers can easily be determined in terms of volumes, Respondent purchases all alcoholic beverages through the package store and does not purchase alcoholic beverages separately for the bar. Thus, factual issues arise in determining the volume of beer, wine, and liquor sold through the bar. Even though a vendor elects the purchase method, rather than the sales method, Petitioner must calculate the volume of alcoholic beverages sold at retail. Petitioner has devised a formula for this purpose. The audit in the present case took place at the start of 1993 and covered July 1990 through December 1992. The auditor obtained the invoices of the wholesale distributors that sold beer, wine, and liquor to Respondent during December 1992, January 1993, and February 1993. From these invoices, the auditor determined Respondent's cost of goods sold for these three months. The auditor then estimated the markup on the alcoholic beverages. For liquor, the auditor asked Respondent's counterperson the amount of markup for larger bottles and smaller bottles. The percentage markups were 25 percent and 35 percent, respectively. Recording the sales prices of two smaller items and two larger items, the auditor then calculated the actual markup and found that these estimates were quite accurate. The auditor next averaged the markup to 30 percent. It is unclear whether he attempted to estimate the relative proportion of larger items to smaller items. It is clear that this markup applies to liquor and possibly to wine, but not to beer, where the markup is much less. The auditor then found the breakdown between package store sales and bar sales for December 1992 through February 1993. Expressed as a percentage of total sales, package sales accounted for 51.1 percent, 61.3 percent, and 49.3 percent for the three months, respectively. The auditor averaged these figures and determined that 53.9 percent of all Big Still sales were through the package store. Next, the auditor applied the 53.9 percent factor to the total purchases from wholesale distributors during the 30-month audit period. After a reduction to reflect the 30 percent markup, the auditor calculated the package- store factor, which is deducted from total volume to yield the residual volume of beer, wine, and liquor, which is presumed to have been sold through the bar. The lower the markup, the higher the package-sale factor, which is to the vendor's advantage as the package-sale factor is a deduction because it is not subject to the surcharge. Numerous questions arise in the application of Petitioner's formula in this case. Questions include the reasonableness of the methods of estimating markup and differentiating between package and bar sales. In the absence of records from Respondent, however, Petitioner's approach would prevail. However, Respondent has separately accounted for bar and package store sales for years. Motivated by a desire to reduce employee pilferage, Respondent has required employees to record all transfers of beer, wine, and liquor from the package store to the bar. To ensure compliance, Respondent has also required that all empties be returned to the package store in order to monitor bar sales. Respondent reported and paid the surcharge in accordance with the volumes of alcoholic beverages reflected on its internal records. There is no surcharge deficiency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Administrative Action against Respondent. ENTERED on November 29, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 29, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4-12: rejected as subordinate. 13-14 (first sentence): rejected as recitation of evidence. 14 (remainder)-15: adopted or adopted in substance. 16-18: rejected as recitation of evidence. 19-25: adopted or adopted in substance; provided, however, Petitioner failed to prove that the result was more accurate than the result produced by Respondent. 26: rejected as recitation of evidence. 27-30: adopted or adopted in substance. 31-34: rejected as recitation of evidence and subordinate. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4: rejected as repetitious. 5-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9: adopted or adopted in substance. 10-end: rejected as subordinate, repetitious, recitation of evidence, irrelevant, not findings of fact, and not in compliance with order of hearing officer requiring numbered paragraphs with no more than four sentences per paragraph. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard D. Courtemanche, Jr. Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 N. Monroe St. Tallahassee, FL 32399-1007 Harold M. Stevens Harold M. Stevens, P.A. P.O. Drawer 1440 Ft. Myers, FL 33902
The Issue Whether the Respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust, in a business transaction in violation of subsections 475.25(1)(b),(d) and (k), Florida Statutes, by virtue of the sale of the Wal-Mar Motel by Montver, Inc., to Derek and Lucy Lea.
Findings Of Fact At times material hereto, Respondents were the holders of the following Florida real estate license numbers: John H. McCain (McCain), license number 0192076; J. H. Miller license number 364090 and Dynamic Realty, Dynamic Commercial Group, license number 0044285. The licenses issued to Respondents McCain, Miller and Dynamic Realty were as broker, salesman and corporate broker, respectively. Prior to December, 1983, Derek and Lucy Lea, who are married, were residents of England. During the summer of 1983, they became interested in purchasing property in the United States and determined that in order to immigrate they would need to purchase and become owners of an American business. In keeping with their interests, they came to Florida (Pinellas County) during October, 1983 to inquire about the purchase of a motel listed by Respondent McCain. The Leas were assisted in their search by Dynamic Realty and J. Miller as selling brokers, acting as co-broker with Edna Stokes of Great Britain. The Leas learned of properties for sale in the States through advertisements, and decided that they were interested in purchasing a motel. Their preference was to own a business on the west coast of Florida because of the residence of Mrs. Lea's relatives in the Tampa area. The Leas responded to an advertisement of Edna Stokes who offered them information pertaining to Florida properties. The Leas advised Stokes of their special requirements, including a preference for the west coast of Florida, a motel business which offered a single story residence to accommodate the physical needs of Mrs. Lea's mother and a business situated off the major thoroughfares such that they could house their numerous pets and permit them to roam freely. Edna Stokes provided information on several motels in Florida including two in the Ft. Lauderdale area. Three were noted in the Clearwater/Dunedin area, one of which was under contract to another party and therefore not available. Of the remaining two, only one had the special locale and elevation requirements requested by the Leas, the Wal-Mar Motel located in Dunedin. The Leas had no prior experience in the motel business. During 1983, Mr. Lea was unemployed and his prior experience had been as a messenger in a bookmaking establishment. The major source of family support came from Mrs. Lea's employment as a computer operator. During October, 1983, the Leas began negotiations to purchase the Wal- Mar after they inspected the property late one evening. Respondent Miller made an arrangement for Mrs. Lea to revisit the Wal-Mar the next day. The Wal-Mar was listed for sale by Respondent McCain. Mrs. Lea, in the company of Respondents Miller, McCain and Kathy McCain, the daughter of Respondent McCain and the then manager of the hotel, inspected the Wal-Mar. Mrs. Lea concluded her inspection the following day. During the evening when Mrs. Lea inspected the Wal- Mar, she spoke to her husband by phone and they then decided to make an offer to purchase. Respondent Miller prepared an offer in accordance with Mrs. Lea's instructions and as a safeguard, included provisions in the purchase offer to protect the Leas' interest by allowing a suitable time for inspection and verification of both the physical condition of the premises and the financial books and records. The Leas' offer was accepted and Mrs. Lea returned to England. Respondent Miller later assembled financial data furnished by the owner and forwarded it to the Leas for their personal review. In addition to the written information passed on by Kathy McCain, Respondent Miller included an independent summary of survey results compiled by him of similar area motels respecting comparable rates. The Leas reviewed the information provided by Respondent Miller and confirmed their approval and satisfaction of the data by returning a telegram to Respondents Miller and Dynamic stating that the pertinent condition of the contract (paragraph 17E) was approved. 1/ The Leas returned to the United States and closed the transaction on December 17, 1983. They operated the Wal-Mar Motel through approximately January, 1985. The Leas enjoyed marginal success during the winter season of 1984 and made agreed mortgage payments to the seller for three months. Thereafter, they made no further payments although they continued to live and operate the motel and collected income for approximately ten additional months. They were eventually foreclosed and the property was returned to the seller. The Leas filed a civil suit and obtained a judgement against Respondent Dynamic. Dynamic did not appeal the judgement in favor of the Leas. However, the effect of that judgement is not dispositive of the issues relating to Respondent Dynamic's alleged wrongdoings herein based on, inter alia, different standards of proof in the two forums and Respondent counsel's stated position that Dynamic chose not to seek appellate review based solely on financial considerations. When the Leas contracted to purchase the motel, there was a general expectation within the tourist industry in the Tampa Bay area that the upcoming winter season would be a banner season. One factor leading to this expectation was the scheduling of the Super Bowl which was played in Tampa during 1984 and which was expected to bring a large influx of additional visitors. However, the expected increase in tourism did not occur and the area suffered a remarkably and unusually cold winter which led to a marked drop in tourism. Kathy McCain, who had agreed to assist the Leas in operating the motel and to assure a smooth transition, was unexpectedly told by the Leas that she should prepare to leave within days following the Leas purchase of the Wal-Mar. Ms. McCain inquired of the Leas whether they wanted to review certain files she maintained of past visitors such that the Leas could canvas them to determine whether or not they could generate some business through that medium and the Leas declined her offer. Kathy McCain thereafter disposed of the motel registration cards based on the Leas' wishes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: Petitioner enter a Final Order dismissing the administrative complaint filed herein in its entirety. Recommended this 24th day of May, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 24th day of May, 1989.
