Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, First Federal Savings and Loan Association of Putnam County (petitioner or First Federal), owns and operates a full service savings and loan institution in the Palatka, Florida area. As a part of its regular business operations, petitioner utilizes the services of Florida Informanagement Services, Inc. (FIS), a data processing servicing firm which provides bookkeeping and data processing services. In performing these services, FIS collects financial data from computer terminals located at petitioner's offices and returns processed data in the form of financial statements, payrolls, tax reports, accounts receivable and payable statements, and related information to petitioner. Respondent, Department of Revenue (DOR), is the state agency charged with the responsibility of enforcing the Florida Revenue Act of 1949, as amended. Among other things, DOR performs audits on taxpayers to insure that all taxes due have been correctly paid. To this end, a routine audit was performed on petitioner covering the audit period from June 1, 1985, through December 31, 1989. After the results of the audit were obtained, and an initial assessment made, on September 13, 1991, DOR issued a notice of decision wherein it proposed to assess petitioner $43,204.91 in unpaid taxes. After a petition for reconsideration was filed, DOR issued its notice of reconsideration reducing the assessment to $37,805.92. The parties later reached an agreement as to all issues except an assessment of $11,476.12 for unpaid sales taxes plus applicable interest and penalties. The taxes relate to a charge on the monthly statement issued to First Federal by FIS and which is identified as "total data communications". The assessment concluded that the data communi-cations charge is a taxable sale of a private communication service or a telecommunication service within the meaning of Subsections 203.012(4)(a) and 203.012(5)(a), Florida Statutes (1989). Contending that the assessment should be withdrawn, petitioner initiated this proceeding. The Services Provided by FIS Established in 1968 by a group of savings and loan institutions, FIS is a data processing service bureau headquartered in Orlando, Florida, and which contracts with approximately one hundred clients, all savings and loan institutions, to provide comprehensive data processing and accounting-type services. Its sole purpose is to provide its clients with state of the art data processing services at an economical shared cost. The services being rendered here are commonly provided to banking institutions throughout the state by FIS and a number of similar data processing companies. FIS utilizes a network of long distance telephone lines leased from various telephone companies located throughout the state to collect financial transaction data from each of its member clients, including petitioner. Keyboards are utilized by bank employees at each office to input financial transaction information (e. g., a deposit to or withdrawal from a checking account) to a "data line" or communication channel, which is a multi-link long distance communication pathway leased by FIS from a telephone company. This information is collected by a front end processor and transmitted through the data line to the computer system (mainframe) located at FIS headquarters in Orlando. The computer acknowledges receipt of the transaction, records and processes the transaction, and sends a response back through the data line to the sending terminal. This process is repeated hundreds of times each day for every terminal located at each bank office. At the end of each business day, FIS processes all of the transaction data collected during the day into comprehensive reports which summarize such activities as loan and account balances, bank department activities, automatic teller transactions, and similar information. These reports are then delivered to the banks by courier the next morning. It is noted that during the first two years of the audit period, First Federal had a single data line with twenty-six terminals. In 1987, a second data line was added due to an increase in terminals. Today, First Federal has four offices with a total of forty-eight terminals on two data lines. FIS and its clients have entered into an information processing agreement which governs the provision of services and their price. This contractual relationship between FIS and First Federal began in 1974. Copies of the 1982, 1985 and 1987 agreements have been received in evidence as respondent's exhibits 6 and 7 and petitioner's exhibit 4, respectively. Paragraph 4.(c) of the first two agreements provides that "(t)elecommunications for on-line services will be provided by FIS as part of this agreement" while the 1985 agreement also provides that "(p)rice increases charged to FIS by telecommunications senders will be passed on to the institution". The copy of the 1987 agreement introduced into evidence is incomplete but the testimony suggests that except for the word "telecommunications" found in paragraph 4.(c) of the earlier agreements, the same provisions appear in the more recent agreements. The Data Communications Charge FIS issues on a monthly basis an itemized statement for its services. Among the charges on the statement is one labeled "total data communications", which is based upon the total number and types of computer terminals which can access the FIS computer. The charge is not based on the actual cost of establishing and maintaining the communication pathway but rather is assessed equally upon all FIS clients as an identical monthly flat fee per terminal charge of $86. The same flat fee per terminal charge is assessed regardless of the number of computer terminals utilized by an institution, the number of transactions per terminal, the amount of telephone time consumed, or the geographic distance between the FIS mainframe computer and the customer's location. Thus, the same fee per terminal would be assessed on a bank in Orlando a few blocks from the mainframe computer as one located in Pensacola or the Florida Keys. The data communications charge represents a number of cost elements including the establishment and maintenance of the FIS mainframe computer system, research and development, technical support, company overhead, and the cost of the leased telephone lines. However, the per terminal charge of $86 is neither a direct nor indirect pass-through by FIS of the actual cost of establishing and maintaining the communications link with any individual customer. Is the Transaction Taxable? DOR acknowledges that the various data processing services that First Federal purchases from FIS, which is acting as a "service bureau" under Rule 12A-1.032(6), Florida Administrative Code, are "professional services" and are exempt from taxation under Subsection 212.08(7)(v)1., Florida Statutes. It also admits that as of the date of hearing, it had no "firm" policy on the issue presented herein and was still in the process of developing one. Even so, DOR contends that the services identified as "total data communications", which include the communication network through which FIS collects the raw financial data from its clients for processing, are taxable since these services constitute a private communication service as that term is defined in Subsection 203.012(4)(a), Florida Statutes (1989). There, the term is defined as a communication service that entitles a subscriber "to exclusive or priority use of a communication channel." DOR first relies upon the fact that during the audit period FIS and First Federal had entered into agreements for FIS to provide First Federal with "telecommunications" for its "on line" services. DOR construes this language in a literal sense to mean that FIS is "selling" a telecommunication service. In addition, the agreements allow FIS to increase the data communication charges based upon potential increased telephone costs to FIS. Again, DOR interprets this language as further evidence that FIS is merely reselling a telephone service to its clients. DOR also points out that First Federal has a reasonable certainty of getting its communication through on the communication channel and that no other communication can take place on the line while First Federal is transmitting or receiving a message. It considers irrelevant the fact that First Federal may not have priority or exclusive rights over any other FIS client having access to the FIS data collection system. Thus, DOR concludes that First Federal has "exclusive or priority use" of a communication channel within the meaning of the law. It further concludes that FIS is engaged in the sale of a private communication service (via the leased telephone lines) which gives First Federal access to FIS's computer. The evidence shows that the computer terminals located at petitioner's offices are commonly referred to as "dumb" terminals whose sole function is data input, that is, to transmit data from the institution to the computer mainframe. They cannot be utilized to access the FIS mainframe to perform any type of individualized date processing or other analysis. Further, they cannot communicate with each other using the data lines nor can they communicate with any other financial institution or other computer system. In addition, the lines cannot be used for regular voice communication, and when the institution is closed, the lines cannot be used for any other purpose. Over ninety percent of FIS member institutions share portions of one or more data lines with other FIS clients. Although during the audit period First Federal did not share its two lines with another institution, if one should open an office in the Palatka area and utilize FIS's services, its terminals would be placed on the unused portion of First Federal's lines, assuming such unused capacity is then available. In addition, all of the data collection and processing services are controlled directly by FIS. Thus, no FIS client has any priority in transmitting transaction information or obtaining data processing services over any other FIS customer, regardless of size or geographic location. Rather, the data is collected by FIS according to a pre- determined polling system controlled by a communication processor. Since a single data line can collect information from as many as thirty individual computer terminals, the polling system must "poll" each of those thirty terminals in numeric sequence to determine if the terminal has any data to transmit. Once the polling system has "polled" a particular terminal, the terminal is unable to transmit data until all other terminals have been polled. Further, while a message is being transmitted to or received from the computer mainframe, no other transmissions can take place on the data line, and there is no provision in the system to interrupt a transmission. Processed data is then returned to the institution according to the same numeric cycle. Therefore, no institution has "use" of a data line other than that which is directed by FIS, and the fact that a client can be reasonably assured that FIS will collect its data transmissions in a timely manner does not equate to a "priority use" of the communication pathway. The overall cost of the telephone line "network" represents a substantial portion of the total data communication charges assessed to each customer. However, the terminal charge made to each FIS customer is not truly representative of the cost to FIS of obtaining and providing the actual communications link between FIS and an individual bank. As noted earlier, and by way of example, the cost of establishing and maintaining a telephone link between FIS and a small bank in the Florida Keys or the Panhandle would substantially exceed the data communications charge assessed to those institutions. FIS receives telephone bills from every local and regional telephone company from which it leases telephone lines. During the audit period, it was not uncommon for FIS to receive between seven hundred and one thousand telephone bills per month for services to approximately eighty-four full service data processing clients. These bills included both sales and gross receipts taxes and were paid by FIS on a monthly basis. The FIS accounting department does not analyze the individual charges on the various statements to determine the monthly cost of a data line to an individual customer, nor are the charges made to FIS by the various telephone companies for each FIS client rebilled to any particular institution, either directly or indirectly. Rather, FIS absorbs the cost of the entire telephone network as a part of its normal business expense. The earlier information processing agreements refer to "telecommunication services" being provided under the agreement. However, the agreements also refer to the existence of one or more third party providers (i.e., regulated telephone companies) of the actual telephone service, and FIS makes no charge for "telephone service". While the agreements allow FIS to increase the data communications charges based upon the potential increased telephone costs to FIS, the charges assessed to FIS customers are unrelated to the actual cost of providing the service between any particular institution and the computer. Indeed, the provision simply allows FIS, when deemed to be necessary, to increase the terminal fee based upon an increase in one of its many cost components. Even if this right is exercised, any increase in that charge would be equally assessed on all clients throughout the state, regardless of their size or location. However, it should be noted that FIS has experienced a substantial increase in costs in providing the telephone service in recent years, but has not raised the data communication charge to any client since 1986. FIS has never charged First Federal for "telephone service". It is irrelevant to the institution how FIS establishes or designates its charges. If the data communication charge was deleted and the costs of the other tax exempt charges increased accordingly, First Federal would still continue to utilize FIS's services. During the audit period, FIS was not registered with DOR as a provider of private communication services. Indeed, its only business is providing data processing and accounting-type services. If it was reselling private communication services, as DOR suggests, it would have to register with DOR and pay a 1.5 percent gross receipts tax on the actual cost of operating the system. DOR recently concluded an eighteen month audit of FIS for the period 1985-1989 and determined that FIS was not liable for gross receipts tax on the sale of any alleged telecommunications services. Finally, testimony by an expert who served as DOR executive director during most of the audit period established that when the law was amended effective July 1, 1984, to impose both sales and gross receipts taxes on the sale of private communication services, DOR interpreted the amendments to apply to those providers who were selling communication services which escaped taxation by bypassing the existing telephone companies or other regulated utilities. This included those who provided communications by microwaves, satellites, privately owned telephone lines and "smart buildings", which utilize a combination of both public and private communication systems. The expert further established that if the issue had been raised during his tenure, DOR would not have construed the activity here to be a taxable sale of a private communications service since neither FIS nor its clients were operating outside the existing telephone company pathways thereby escaping the sales and gross receipts taxes. In summary, the evidence supports a finding that First Federal does not have exclusive or priority use of the data lines and accordingly the challenged service cannot be considered a private communication service. In addition, because FIS could not function as a data processing company without the data collection system, which is an integral part of its comprehensive data processing services, the collection of raw financial data must be construed as a tax exempt service. Therefore, the assessment against First Federal should be withdrawn.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order withdrawing (rescinding) the assessment against petitioner. DONE AND ENTERED this 5th day of April, 1993, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2763 Petitioner: Partially accepted in finding of fact 1. Partially accepted in findings of fact 2 and 3. Partially accepted in findings of fact 4 and 6. 4-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 7. 10-12. Partially accepted in finding of fact 9. Rejected as being unnecessary. Partially accepted in finding of fact 10. 15-16. Partially accepted in findings of fact 7 and 10. 17-18. Partially accepted in finding of fact 8. 19-20. Partially accepted in finding of fact 13. 21-23. Partially accepted in finding of fact 14. 24. Partially accepted in finding of fact 16. 25-27. Partially accepted in finding of fact 15. 28. Partially accepted in findings of fact 11 and 12. 29-30. Partially accepted in finding of fact 11. 31-35. Partially accepted in finding of fact 12. 36. Partially accepted in finding of fact 5. 37-39. Partially accepted in finding of fact 18. Rejected as being unnecessary. Partially accepted in finding of fact 17. Partially accepted in findings of fact 3 and 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 10. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 10. 9. Rejected as being contrary to more credible and persuasive evidence. 10-13. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Mr. Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, Esquire General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Patrick J. Phelan, Jr., Esquire P. O. Box 669 Tallahassee, FL 32302 Lealand L. McCharen, Esquire Department of Legal Affairs The Capitol-Tax Section Tallahassee, FL 32399-1050
The Issue The issues in the case are whether the allegations of the Administrative Complaint are true, and, if so, what disciplinary penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was certified by the Petitioner as a law enforcement officer, holding certificate 267907. At all times material to this case, the City of Sarasota, Florida, employed the Respondent as a law enforcement officer. On the night of January 4, 2010, the Respondent was on duty, riding in a patrol car driven by her work partner, Officer Coppinger. The patrol car contained a laptop computer that was connected to the Florida Driver and Vehicle identification Database (DAVID), a law enforcement database. The DAVID system is not accessible to the public. At the time of logging into the DAVID system, users are advised by a warning screen that the system is restricted to authorized personnel for appropriate law enforcement purposes. Usage of the system for personal purposes is specifically prohibited. An officer accessing the DAVID system must affirmatively acknowledge an understanding of the usage policy prior to initiating research. On the night of January 4, 2010, Officer Coppinger was logged into the DAVID system. The laptop computer is available to both officers in the patrol car. While on duty, the Respondent received a telephone call from her cousin, "Whizz," who told the Respondent of an alleged threat of arson against the Respondent's family by a man identified as "Terrance Bryant." The Respondent did not report the threat to Officer Coppinger or to any other law enforcement officer or agency. Instead, the Respondent immediately accessed the DAVID system in an effort to identify Terrance Bryant's residential address. The Respondent was sufficiently familiar with Terrance Bryant to use a variety of family names and spellings in the search. The Respondent also used information about Terrance Bryant's girlfriend, with whom the Respondent was also familiar, to the extent that the girlfriend had listed the Respondent as a reference on her own application for employment with the Sarasota Police Department. After extensive research in the DAVID system on January 4, 2010, the Respondent obtained the residential address for Terrance Bryant. The Respondent and Whizz met on January 5, 2010, at the Respondent's home to handle some household errands. The Petitioner asserts that the Respondent provided Terrance Bryant's residential address to Whizz at that time. The evidence is insufficient to clearly establish how Whizz obtained the address, but, by the time Whizz left the Respondent's home on that date, he possessed Terrance Bryant's residential address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending the Respondent's correctional certificate for two years. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2012.
The Issue Whether on or about November 28, 1993, Petitioner committed an act of violence or used force on another person which was not for the lawful protection of himself or another and was sufficient grounds for denial of Petitioner's application for a Class "D" Security Officer and Class "G" Statewide Firearm Licenses, pursuant to Sections 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact By application dated February 10, 1994, Petitioner applied to Respondent for a Class "D" Security Officer license and a Class "G" Statewide Firearm license. The applications prepared by Petitioner were complete, and included the required photos and copy of a certificate evidencing successful completion of security officer training as required by statute. On November 28, 1993, the Petitioner met his estranged spouse in the Lakeland police station lobby to exchange custody of their baby daughter. This transfer of custody was videotaped, allegedly by the Petitioner's mother-in-law. As the transfer was ending, the Petitioner became agitated at the person holding the camera. Petitioner picked up the baby car seat and moved towards the camera. The Petitioner swung the baby car seat, while the baby was in it, in the direction of the camera. No competent evidence was produced which proved that the car seat, while being swung by Petitioner, struck another person or an object held by another person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving Petitioner's application for a Class "D" Security Officers license and a Class "G" Statewide Firearm license as provided for in Section 493.6118, Florida Statutes (1993). DONE AND ENTERED this 11th day of January, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 11th day of January, 1995. APPENDIX Petitioner is eligible for licensure under either stand Petitioner did not submit proposed findings of fact. Respondent proposed finding of fact: Accepted in substance: paragraph 1, 2, 3, 4, 5, 6 (in part). Rejected as not supported by the greater weight of competent (non-hearsay) evidence: paragraphs 6 (in part), 7. COPIES FURNISHED: Angel E. Figueroa 5331 David Street Lakeland, Florida 33813 Richard R. Whidden, Jr., Esquire Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol Tallahassee, Florida 32399-0250
The Issue The issue is whether Petitioner had just cause to discipline Respondent by suspending his employment without pay as a tenured professor for six months, by prohibiting him from engaging in any activities with outside businesses, and by withdrawing existing outside activities exemptions or approvals.
Findings Of Fact Respondent is a Board Certified medical doctor. Respondent specializes in neurology and clinical neurophysiology. He has special expertise in epilepsy and clinical neurophysiology. Respondent has performed research in the area of epilepsy. At all times material to this case, UFBOT employed Respondent. Respondent also worked for the Malcolm Randall Veterans Administration (VA). Respondent had a laboratory at the McKnight Brain Institute on the University of Florida campus. He was a tenured professor on the faculty of the Biomedical Engineering Department. He also held joint appointments as Professor of Neurology and Professor of Psychiatry, as well as an affiliate appointment as Professor of Neuroscience. Respondent was a member of the University of Florida's Graduate Faculty. An Institutional Review Board (IRB) is an internal review board that has the obligation to provide oversight for all research activities involving human subjects. IRB-01 is one of four review boards affiliated with the University of Florida. IRB-01 is responsible for oversight of research at the Health Science Center. IRBs are charged with the responsibility of complying with federal regulation for the protection of human subjects found in 45 C.F.R. Part 46, Protection of Human Subjects. This regulation is known as the "Common Rule." Beginning in 1993, Respondent was the principal investigator (PI) on a research protocol entitled "Dynamical Studies in Temporal Lobe Epilepsy," hereinafter referred to as Protocol 447-1993. IRB-01 approved Protocol 447-1993. Pursuant to Protocol 447-1993, data in the form of video-taped EEGs and clinical records were collected from 18 patients with intractable epilepsy. Some of the data was called "scalp" data, because it was collected via electrodes attached to the patients' scalps. The rest of the data was called "depth" data, because it was collected during surgical procedures. The informed consents in Protocol 447-1993 informed the subjects that researchers would be reviewing their medical records to gather information about their epilepsy. According to the informed consents, researchers would analyze brain wave recordings that were performed on the patients as part of the diagnostic evaluation, store the recordings on a computer, and analyze the recordings with new mathematical techniques. The informed consents also advised the subjects that their personal information would not appear in print or be presented in a manner that could identify them. The informed consents for subjects enrolled in Protocol 447-1993 provided that the University of Florida and the VA Medical Center would protect the confidentiality of the subjects' records to the extent provided by law. Subjects were also informed that the National Institutes of Health (NIH) as the Study Sponsor, the Food and Drug Administration (FDA), and IRB-01 had the right to review the records. Protocol 447-1993 continued with IRB-01 approval for several years. The protocol expired in May 2002. It is not permissible for a researcher to use data from an expired protocol in a later protocol without additional approval from the IRB. In 2001, Respondent applied for and received approval from IRB-01 for a research protocol entitled "Bioengineering Research Partnership," identified as Protocol 430-2001 (BRP Protocol). Respondent was the PI for the new protocol. The proposal for the protocol described the research procedures as a plan to develop and test automated computer-based algorithms for analyzing the spatiotemporal dynamical properties of multi- channel EEG recordings to determine the probability of an epileptic seizure. The computer algorithms were to be tested and evaluated on three (3) data sets. The first dataset was comprised of a group of long-term EEG recordings that were obtained for clinical purposes in patients with medically intractable epilepsy. By memorandum dated September 18, 2001, Respondent informed the IRB-01 Vice Chairman that the study under which the EEGs were collected for the BRP Protocol was another IRB-01 approved protocol, identified as Protocol 22-2000. Protocol 22- 2000 did not include data from Protocol 447-1993. Respondent did not reference data from Protocol 447-1993 in his September 18, 2001, memorandum. Further, there is nothing in the BRP Protocol that informs the IRB-01 that data from Protocol 447-1993 would be included in the new research project. If there is a change in a protocol, no matter how slight, the change must be approved by the IRB. If Respondent wished to include data from Protocol 447-1993 in the BRP Protocol, he needed to make a request to include that specific data. The IRB never gave Respondent approval to use the data from Protocol 447-1993 in the BRP Protocol. The IRB approved the BRP Protocol as an exempt Category IV study pursuant to the Common Rule. An exempt Category IV study is "[r]esearch involving the collection or study of existing data, documents, records, pathological or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects." See 45 C.F.R. § 46.101(b)(4). NIH grants funded the BRP Protocol and Protocol 447- 1993. In 2003, the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) were implemented at the University of Florida. In order to enforce those provisions, the University of Florida created the Privacy Office at the Health Science Center. Respondent and all of his staff were required to take privacy training provided by the Privacy Office. According to HIPAA, protected health information (PHI) about a patient may be used or disclosed to others only in certain circumstances or under certain conditions. Information about a patient can be de-identified under two alternative procedures set forth at 45 C.F.R. Section 164.514(b). The first procedure requires that a qualified person applying accepted statistical and scientific principals determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is a subject of the information. The qualified person must document the methods and results of the analysis that justify such a determination. The second procedure is the removal of all identifiers set forth in 45 C.F.R. Section 164.514(b)(2)(i) from a given patient data set. The identifiers include any unique identifying number, characteristic, or code. Additionally, the covered entity may not have actual knowledge that the remaining information can be used alone or in combination with other information to identify the patient. If a data set is properly de-identified, it is not PHI and is not governed by HIPAA. Furthermore, it does not fall within the definition of human subject research under the Common Rule. Properly de-identified data does not require subject consent or IRB approval for disclosure. Pursuant to the policies and procedures of the IRB-01, only the IRB can make the determination that the research does not include human subjects. BioNeuronics (formerly Neurobionics) is a start-up medical technology company that Respondent and others formed for the purpose of translating an invention developed by Respondent and his colleagues at the University of Florida and Arizona State University into medical devices for the treatment of patients with epilepsy. The University of Florida Research Foundation (UFRF) and Arizona State University owned the patent. BioNeuronics entered into a licensing agreement with the two institutions, permitting the company to develop the patented technology. The University of Florida's Office of Technology Licensing (OTL) was established to work with inventors to facilitate the transfer of technologies created at the university to the commercial sector for public benefit. It is not uncommon for both inventors and the UFRF to be given stock in start-up companies. The OTL encourages inventors to maintain an advisory relationship with the licensee. Pursuant to the licensing agreement, the UFRF was to provide "test data" to BioNeuronics. The licensing agreement does not identify the test data to be provided. The licensing agreement did not contain any provision that test data from Protocol 447-1993 was to be provided to BioNeuronics. At all times material to this case, Respondent owned stock in BioNeuronics, as does the UFRF. Respondent was paid $2000 per month as a consultant for the company. The University of Florida approved the terms of Respondent's participation in BioNeuronics. The UFBOT employs Michael Mahoney as the IRB-01 Coordinator. He is responsible for management of the IRB-01 office. He sits as an alternate member of the IRB-01 Board. The IRB-01 Executive Committee is composed of the Chairman, the Vice-Chairman, the QA Coordinator, the Assistant Director for IRBs, and Mr. Mahoney. Mr. Mahoney's duties involve more than just office management. He also acts as a resource for investigators and research team members on general regulatory information. He provides guidance with IRB-01 forms and assistance with the preparation of submissions for IRB review. In January 2006, Respondent sent an e-mail to Mr. Mahoney, informing him that Respondent had been acquiring and storing long-term EEG and video records of patients with medically intractable seizures. Respondent's e-mail stated that there was an international effort to establish a shared database so that researchers in participating institutions could share datasets. Respondent requested information as to the requirements to share this data with persons outside the university. On February 1, 2006, Mr. Mahoney responded to Respondent, informing him that he needed IRB approval before doing anything new with the data, including releasing it to others. Mr. Mahoney concluded his message by stating that Respondent would have to submit something to the IRB before using or sharing old datasets for different research purposes. At all times material here, Deng Shan Shiau, Ph.D., held a faculty position as a Research Assistant Professor of Biomedical Engineering. Dr. Shiau was in charge of Respondent's laboratory. Dr. Shiau and another research assistant, Dr. Iasemidis, supervised the work of graduate engineering students who recorded, stored, and analyzed data in Respondent's laboratory. Drs. Iasemidis and Shiau brought technical experience and engineering expertise to Respondent's research projects. Daniel J. DiLorenzo, M.D., Ph.D., M.B.A, is an official with BioNeuronics. On February 8, 2006, Respondent forwarded to Dr. DiLorenzo a copy of Respondent's January 2006 e-mail and Mr. Mahoney's February 1, 2006, response. In his transmittal, Respondent stated that he would ask a new assistant, Jessica Martin, to work with Dr. Shiau to obtain copies of consents signed by patients in the depth electrode database to see if the consents would allow the sharing of the de-identified data. Respondent stated that if the consents were inadequate, he would request permission from IRB. Respondent contends that his January e-mail to Mr. Mahoney and Mr. Mahoney's response was not intended to refer to the release of data to BioNeuronics. Instead, he claims that he was inquiring about the release of data to an international symposium of scientists. Respondent's February 8, 2006, e-mail to Dr. DiLorenzo is persuasive evidence to the contrary. On March 7, 2006, Jessica Stevens, an employee in Respondent's laboratory also wrote an e-mail to Mr. Mahoney. Ms. Stevens wanted to know what needed to be done to hand over pre-existing data to others. Ms Stevens wrote a subsequent e-mail to Mr. Mahoney, clarifying that the data Respondent would be handing over was gathered from 1994 to 1997, and that the data would be furnished to BioNeuronics. Mr. Mahoney responded to Ms. Stevens the next day. Mr. Mahoney stated that Ms. Stevens' question was fairly similar to the one he had previously answered directly to Respondent. Mr. Mahoney informed Ms. Stevens that releasing data originally obtained for research purposes is a tricky proposition at best. Mr. Mahoney wanted to know whether the subjects originally consented to share their data, regardless of whether it was de-identified. Mr. Mahoney questioned whether Respondent wanted to release identifiable data and whether Respondent had any conflict of interest issues with the receiving entity. Mr. Mahoney informed Ms. Stevens that her e-mail did not give him enough details to assist her, and that she might want to meet with him to ensure that nothing inappropriate occurred. Ms. Stevens read Mr. Mahoney's response to Respondent, who responded, "Don't listen to him." Respondent told Ms. Stevens that Mr. Mahoney did not know what he was talking about. Mr. Mahoney's advice to Respondent about the release of old data to persons outside the University of Florida was not an official directive of the IRB. However, if Respondent did not believe Mr. Mahoney was qualified to give advice regarding the release of data, there would have been no reason for Respondent to contact Mr. Mahoney in the first place. On March 8, 2006, Dr. DiLorenzo sent an e-mail to Respondent. The message thanked Respondent for agreeing to transfer de-identified continuous EEG data to BioNeuronics. Dr. DiLorenzo stated that all were in agreement that de- identified data would not require IRB approval. Dr. DiLorenzo also related that Dr. Shiau mentioned that he could provide copies of Epilepsy Monitoring Unit (EMU) reports and a spreadsheet with the timing of seizure events for each patient. Respondent did not respond to this message from Dr. DiLorenzo. Respondent subsequently asked Dr. Shiau to put data from Protocol 447-1993 on an external hard drive to send to BioNeuronics. Dr. Shiau sent the external hard drive to BioNeuronics on or about March 14, 2006. On March 16, 2006, Respondent sent an e-mail to Dr. DiLorenzo, asking whether he had any questions about the data format, location of seizures, seizure types, et cetera. Respondent admits that Dr. DiLorenzo would not have been able to determine the seizure type with just the EEG data. Respondent's testimony that he did not intend to send BioNeuronics the patients' clinical records or Excel spreadsheets is not persuasive. The patient information from Protocol 447-1993 consisted of the following computer files: (a) an EEG file with an associated "tag" file; (b) and EMU report consisting of a clinical encounter record, saved in .pdf format; and (c)an Excel spreadsheet with the timing of seizure events for each patient. Respondent knew or should have known that BioNeuronics needed this information to test its algorithm and that the company could not succeed using just the EEG files. Each patient from Protocol 447-1993 was identified by a research subject number such as P171 or P267. Dr. Shiau kept a list of the codes with the associated patient name in a locked file cabinet to which only he had access. Each of the computer files on a given patient included the research subject number as part of the file name. For example, one of the EEG files for P171 was named P17101.eeg. The associated tag file for that EEG file was named P17101.tag. The EMU clinical record for that patient was named P171.pdf. The corresponding Excel spreadsheet was named P171.xls. Respondent originally recorded the Protocol 447-1993 data on VHS tapes. In a second study, the pre-recorded data was transferred from VHS to a digitized form using a proprietary Nicolet Biomedical software program utilized to read the EEGs. The tag files were also generated by the Nicolet reader. The contents of the tag file did not appear on the computer screen when viewing the EEG files, but they could be opened using a word processing program such as WordPad. Neither Respondent nor Dr. Shiau was aware that six of the tag files had patient last names imbedded within the binary codes. The data sent to BioNeuronics was gathered prior to the implementation of HIPAA. At some point in time, an effort had been made to de-identify the clinical records by removing the patients' names, birthdates, and other personal information on the top half of the first page. There is no evidence that anyone specifically checked the data to determine if the records were de-identified pursuant to the new HIPAA standards. Therefore, Respondent's testimony that he did not seek IRB approval prior to sending the data to BioNeuronics because he had a reasonable belief that the data from Protocol 447-1993 was de-identified and related to the BRP Protocol is not credible. On March 18, 2006, an anonymous letter was sent to various entities, including the Office of Civil Rights, the Department of Veteran Affairs, the FDA, the Florida Board of Medicine, the Office of the Attorney General of Florida, the Office for Human Research Protections, the College of Medicine of the University of Florida, the Office of Research Affairs of the University of Florida School [sic] of Medicine, and the NIH. The letter alleged that Respondent had committed an intentional and willful HIPPA [sic] research protocol violation. The letter alleged that the violation involved the release of PHI to BioNeuronics on external hard drives. On March 21, 2006, Linda Dance, an assistant in Respondent's laboratory, wrote a letter to Susan Blair, the Privacy Officer for the University of Florida. In the letter, Ms. Dance reported what she believed was a HIPPA [sic] violation. Ms. Dance identified the violation as the release of patient data to BioNeuronics, a company in which Respondent owned stock and from which he received monthly consulting fees. The Office of Human Research Protections (OHRP) is a federal agency of the United States Department of Health and Human Services. The OHRP wrote to the University of Florida and the VA based on the anonymous letter. The OHRP requested both institutions to investigate the alleged non-compliance, and forward to OHRP a written report. The OHRP also required the university and the VA to provide a description of any corrective actions taken to prevent noncompliance in the future. Ms. Blair undertook an investigation of the matter, interviewing all of the persons involved. She also contacted BioNeuronics to inform the company of a potential disclosure of PHI. The University of Florida Police Department was also involved in the investigation. BioNeuronics immediately returned the external hard drive. The company's president, John Harris, attested that BioNeuronics had erased any data from the hard drive that had been put onto their computer systems. He also attested that to his knowledge, no one at the company had viewed any PHI. The Security Office of the Health Science Center received the hard drive. The office then made a forensic copy of the drive, which contained 18 patient files, including EEG files, tag files, clinical records, and Excel spreadsheets. The Privacy Office made hard copies of the computer files to determine whether they contained any PHI. An employee of Shands Hospitals, who was not connected with the Privacy Office, but who had full access to confidential hospital patient records, was able to identify all 18 patients within a very short time. For at least one of the patients, the clinical record reflects that it is a record of Shands Hospital at the University of Florida. It also contains a room number, a date of service, the name and signature of the doctor, the medications prescribed, the types of procedures involved, and a diagnosis and detailed description of the patient's seizure activity. In the body of the narrative, the clinical record contains the last name of the patient. Access to patient records at Shands Hospitals and Clinics is restricted to persons having a verified and legitimate need to know. Unauthorized access for the purpose of identifying a patient is a violation of law. However, it makes no difference whether an average citizen has access to the information necessary to re-identify a patient. Rather, if identification is possible, the information is PHI. Respondent and Dr. Shiau were placed on administrative leave as of March 31, 2006, pending the outcome of the investigation. Ms. Blair concluded her investigation and issued a report dated April 30, 2006. William Ditto, Ph.D., the Chairman of the Department of Biomedical Engineering, in consultation with the Dean of the College of Engineering and the Provost of the University of Florida, determined that in lieu of dismissal, Respondent would be suspended without pay for six months, commencing August 16, 2006, through February 7, 2007. Dr. Shiau was given a written reprimand. Dr. Ditto sent Respondent a letter dated August 2, 2006. The letter advised Respondent of the six-month suspension. The letter also noted that Respondent was prohibited from engaging in any outside activities with businesses outside the university. The letter stated that Respondent's current outside activities, exemptions, or approvals were withdrawn, including those with BioNeuronics, Inc. and Optima Neuroscience, Inc. The revocation of Respondent's waiver to participate in outside activities would have required him to abandon investors who licensed his technology at Optima Neuroscience and give up hope of ever seeing his work come to fruition. Therefore, Respondent did not divest himself of his interest in BioNeuronics or Optima Neuroscience. Respondent did discontinue all outside activities with those companies during this period and his stock in Optima Neuroscience was held in escrow. Respondent appealed the disciplinary action. The UFBOT referred the appeal to the Division of Administrative Hearings. UFBOT denied Respondent's request to be reinstated to his position with the university during the appeal in accordance with Florida Administrative Code Rule 6C1-7.048(2)(c). UFBOT stopped paying Respondent at the end of the spring semester 2006. Ordinarily, UFBOT would have paid him during the summer from funds generated by this grants. Due to his involuntary administrative leave, Respondent could not do any work under his grant during the summer because the UFBOT refused to continue Respondent in pay status pending his appeal. Prior to the end of his disciplinary suspension, the university relinquished Respondent's major funding source, the On Line, Real Time Seizure Prediction Grant, worth 2.4 million dollars to the NHI. Since research was the primary basis of Respondent's employment, Respondent assumed there was no job for him to return to after his defacto suspension was over. On February 16, 2007, Respondent voluntarily resigned from his tenured professorship at the University of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enters a final order finding just cause to discipline Respondent, who is entitled to back pay from August 16, 2006, to February 16, 2007. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007. COPIES FURNISHED: Carla D. Franklin, Esquire Carla D. Franklin, P.A. 4809 Southwest 91st Terrace Gainesville, Florida 32608 Susan M. Seigle, Esquire Dell Graham, P.A. Post Office Box 850 Gainesville, Florida 32602 B. Dianne Farb, Esquire Assistant General Counsel University of Florida Post Office Box 100215 Gainesville, Florida 32610-0215 Deborah K. Kearney, Esquire General Counsel Department of Education Turlington Building, Suite 1214 325 West Gaines Street Tallahassee, Florida 32399-0400 Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is and at all material times has been a licensed physician in the State of Florida. He holds license number ME 0029977. On August 7, 1984, Flo-Nita Spanogle and Mary Willis, investigators of Petitioner, conducted an inspection of Respondent's medical office at 5705 Hansel Avenue, Orlando, Florida. The following day, Ms. Spanogle inspected Respondent's medical office at 201 Hilda Street, Suite 38, Kissimmee, Florida. Respondent had not registered the Orlando or the Kissimmee office with the Drug Enforcement Administration. The Orlando office had only been open for about one week. However, the registration certificate for Respondent's previous Orlando office states clearly on the bottom in capital letters: "This certificate is not transferable on change of ownership, control, location, or business activity." Respondent maintained no biennial record of his stock of controlled substances and had no separate records of the receipt and disposal of controlled substances. Respondent maintained patient records that contained, among other things, copies of all prescriptions. Respondent never charged patients for drugs dispensed from his office. Ms. Spanogle found in the Orlando office about 20 containers of controlled substances. The only Schedule III controlled substances were six 1/2-ounce bottles of Hycomine, two Tylenol 3 tablets, two Fiorinal 2 tablets, 12 Fiorinal #3 tablets, and 18 tablets of Vicodin consisting of the remainder of an original prescription of 30 tablets issued by Respondent to Grady Lebbit on June 4, 1984. The remaining controlled substances were listed in Schedules IV and V. Those found in significant quantities were: 80 tablets of Valium (5 mg dosage), 70 tablets of Valium (10 mg dosage), 71 tablets of Valium (2 mg dosage), 40 capsules of Valrelease (15 mg dosage), 60 tablets of Xanex (0.25 mg dosage), 60 tablets of Xanex (0.3 mg dosage), 66 tablets of Dalmane (15 mg dosage), 42 tablets of Dalmane (30 mg dosage), 25 tablets of Limbitrol (varying dosages), 140 tablets of Equagesic (no reported dosage), 23 tablets of Halcion (0.25 ng dosage), five one-ounce bottles of Donnagel PG, and nine one-ounce bottles of Actifed with codeine. With the exception of the Vicodin, the controlled substances described in this paragraph were kept in the office for the purpose of dispensing to patients. Ms. Spanogle discovered in the Kissimmee office only one controlled substance, Valrelease, which is a time-release form of Valium. The total quantity consisted of only three physician's samples, each containing a single 15 mg dose. There is no evidence that the Valrelease was in the Kissimmee office for the purpose of dispensing to patients. None of the above-described controlled substances was kept in a securely locked, substantially constructed cabinet. The controlled substances kept in Orlando were in an unlocked room that was behind the receptionist. Ms. Spanogle confiscated from Respondent's Orlando office numerous legend drugs because they were kept in unmarked or unlabeled containers or bore labels that indicated that their expiration date had passed. With the exception of 18 tablets of Vicodin, none of these drugs was a controlled substance. These drugs were either office stock maintained by Respondent for the purpose of dispensing to his patients or were returned prescriptions from various of Respondent's patients. There was no evidence that Respondent dispensed drugs to other patients from the returned prescriptions. Ms. Spanogle seized the following Orlando office' stock: 297 capsules of Tetracycline contained in an unmarked ziplock plastic bag, eight one- and two-ounce bottles of Kwell lotion either unmarked or marked only with the name "Kwell," 16 tablets of Pyridium (100 mg dosage) with a label bearing an expiration date of February, 1981, 42 tablets of Catapres (0.3 mg dosage) with a label bearing only the drug name and dosage, 111 tablets of folic acid (1 mg dosage) with a label bearing only the drug name, 5 1/2 tablets of Inderal (40 mg dosage) with a label bearing only the drug name, five tablets of Sorbitrate Sublingual with a label bearing only the drug name, eight tablets of Urobiotic (250 mg dosage) with a label bearing only the drug name and dosage, nine tablets of Microdantin (100 mg dosage) with a label bearing only the drug name, 24 tablets of Dilantin (100 mg dosage) with a label bearing only the drug name, 62 tablets of Donnatal (30 mg dosage) with a label bearing only the drug name, 10 tablets of Orinase (250 mg dosage) with a label bearing only the drug name, and three tablets of Microdantin (200 mg dosage) with a label bearing only the drug name. Ms. Spanogle seized from the Orlando office 15 vials of returned prescriptions of legend drugs. None of these was a controlled substance except for a vial containing 18 tablets of Vicodin. All but two of the prescriptions had originally been written by Dr. Tandon. None of the vials, which were the original vials supplied to the patient from the pharmacy, bore a lot number or expiration date. There is no evidence that the returned prescriptions were kept for the purpose of dispensing to patients. Ms. Spanogle destroyed the three physician's samples of Valrelease, as well as three outdated legend drugs found in the office stock of the Kissimmee office. The outdated legend drugs, which were found in a refrigerator in the office, consisted of unreported quantities of Metromycin with an expiration date of April, 1984, Mycostatin vaginal tablets with an expiration date of October 1, 1980, and Permapen Isoject with an expiration date of January 8, 1984. On two occasions prior to the inspection, Respondent had written a prescription for an ampule of Demerol, which Respondent then administered to a patient during an office visit. Demerol is a Schedule II controlled substance. A legend drug is a drug that may be dispensed only by prescription. A controlled substance is a legend drug that is subject to additional regulation due to its potential for creating dependence. Controlled substances listed in Schedule I have the greatest potential for producing dependence. Controlled substances listed in Schedule V have the least potential for producing dependence. A legend drug whose expiration date has passed no longer bears the manufacturer's guaranty as to strength. Lot numbers of legend drugs are used to identify drugs that have been recalled by the manufacturer. Respondent was previously disciplined by Petitioner. By Final Order dated February 27, 1984, Petitioner found Respondent guilty of violating Section 458.331(1)(r), Florida Statutes, by unlawfully prescribing legend drugs to himself. The drugs in that case were Nembutal and Ritalin, which are Schedule II controlled substances. Petitioner imposed an administrative fine of $200 and placed Respondent on probation for a period of one month. He successfully completed the probationary period.
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent was a real estate sales associate, holding Florida license number 3055247. Respondent is currently employed in real estate sales. On May 9, 2004, Respondent entered a plea of guilty to a violation of Subsection 800.04(4)(b), Florida Statutes, and to a violation of Subsection 847.0135(3), Florida Statutes, in Case No. 42-2003-CF-002535, Circuit Court, Fifth Judicial Circuit, Marion County, Florida. Subsection 800.04(4)(b), Florida Statutes, classifies commission of sexual activity with a person under 16 years of age as a second-degree felony. Subsection 847.0135(3), Florida Statutes, classifies knowingly using a computer service to solicit sexual activity with a child as a third-degree felony. Respondent entered the guilty pleas upon advice of legal counsel and in order to avoid a public trial. Respondent was ordered to pay a $500 fine and various court costs, and to serve 100 hours of community service. Although a sentence of one day in jail is noted in the court documents, the same documents credit Respondent with one day of incarceration, and according to Respondent, he spent no time in jail. Respondent was classified as a sex offender, subject to the requirements applicable to the classification, and was placed on probation for a period of seven years. The court records note that Respondent's sentence was a downward departure from sentencing guidelines. The court withheld an adjudication of guilt. At the administrative hearing, Respondent provided the only testimony directly related to the events that resulted in the criminal charges. At some point prior to 2004, Respondent joined a computer dating service in order to meet people for social activities and possible relationships. The dating service charged a monthly fee of $20. Users could post personal information and engage in online chats with other users. In joining the service, Respondent was required to attest to the fact that he was at least 18 years of age, and he presumed that other persons utilizing the service would be subject to the same requirement. While using the online chat service, Respondent became acquainted with another individual, and the two decided to meet. Based on the online discussion, Respondent believed that the other individual was of college age. Respondent drove to an unidentified location where he met and picked up the individual. Respondent testified that the person's appearance, including facial hair and the clothing worn, gave no indication that the individual was not of legal age. Respondent testified that he had "one date" with the individual. Several days after the meeting, Respondent was contacted by an investigator from Marion County who advised him that the individual was under the legal age of consent. There was no reliable evidence offered at the hearing as to the actual age of the other individual at the time the events occurred. Pursuant to the investigator's request, Respondent met with the investigator in Marion County, and was subsequently charged with the cranial offenses referenced herein. According to Respondent's probation officer, at the time of the hearing Respondent was in compliance with and was exceeding the terms of his probation. Respondent participates in mental health counseling with a therapist who has 20 years of counseling experience, including 18 years working with sex offenders. Respondent participates in weekly group therapy and in individual counseling and was described as a cooperative client.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent William J. Flanagan, III. DONE AND ENTERED this 6th day of July, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 6th day of July, 2005.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On February 7, 1986, DOT requested authority for noncompetitive single source acquisition of two (2) IBM 3380-AD4 Direct Access Storage Devices and four (4) IBM 3380-BD4 Direct Access Storage Devices (IBM Direct Access Storage Devices). To support its request, DOT noted, among other things, that: This would allow DOT to connect the proposed drives (IBM Direct Access Storage Devices) to the existing controllers and provide back up in case of controller failure (sometime referred to as the need for complete controlled redundancy). Other non-IBM equipment would require two (2) additional controllers and cause a space problem in its data center. The IBM Direct Access Storage Devices could be upgraded to double capacity (sometime referred to as double density). On February 7, 1986, the Department of General Services (DGS) denied DOT's request for single source acquisition. On February 20, 1986, DOT submitted additional support for the single source acquisition and, again among other things, noted the space problem and the need for two (2) controllers if non-IBM equipment was to be purchased since non-IBM storage units would not attach to IBM controllers. After the receipt of this additional information, James K. Kern, DGS; visited the DOT Burns Data Center and after reviewing the situation on-site and talking with Herbert Pressley of DOT; made a recommendation that the second request for single. source acquisition be approved. After the recommendation for approval by James K. Kerr, Memorex on February 27, 1986, filed notification with DGS of its intent to protest DOT's single source acquisition of IBM direct access storage devices. (b) On March 4, 1986, Memorex responded to its notification of intent to protest single source acquisition by letter to John J. Hittinger, DGS and, among other things, noted that: Memorex being a manufacturer of disk storage equipment since 1967 had demonstrated compatibility with every generation of IBM Data Storage. Memorex was willing to agree to a contractual upgrade to double capacity units when available. Memorex was withdrawing its protest. On March 13, 1986, DGS, based on Memorex's input and the withdrawal of its intent to protest single source acquisition, again denied DOT's single source request because DGS felt that the only way to determine if this bid should be single source or competitive was to competitively bid the direct access storage devices. On March 13, 1986, Steve Ferguson, DOT, commented on Michael A. White's letter of March 4, 1986 to John J. Hittinger, referred to in finding of fact number 6 and, among other things noted that: Controllers and disks must be cross connected in the DOT Bureau Data Center in the event of controller failure (complete controller redundancy) and that this backup policy would not be compromised. He was concerned about whether the Memorex data storage units would attach to the IBM 3880 controller. There is no evidence that White ever responded to this comment. At this point, based on conversation between White and Kerr, White and Pressley and White and Ferguson and correspondence received into evidenced it is clear that both DOT and DGS were of the opinion that Memorex could directly attach its data storage units to the IBM-388O controller without the intervention of a Memorex controller. Both DOT and DGS felt that a competitive bid was necessary to determine if there were suppliers other than IBM who could furnish direct access storage devices which met the specifications as contemplated by DOT. Also at this point, the evidence is clear that Memorex was aware that DOT wanted to purchase data storage devices with present capability for upgrading to double capacity that would attach directly to the IBM 3880 controller without the intervention of another controller and thereby provide for cross connection of controllers and disks so that complete controller redundancy could be achieved. On March 17, 1986, the DOT issued an Invitation to Bid for two (2) IBM 3380-AD4 direct access storage devices (or equivalent) and four (4) IBM 3380-BD4 direct access storage devices (or equivalent), ("the IBM (or equivalent) Direct Access Storage Units"). The Invitation to Bid contained the following material specifications: The direct access storage units must be "equivalent" to the IBM Direct Access Storage Units. The IBM (or equivalent) Direct Access Storage Units must "attach to existing IBM 3880-003 Storage Control units" (IBM Controllers.) The proposed IBM (or equivalent) Direct Access Storage Units must occupy a foot print no greater than 60 square feet. Direct access storage devices (disk drives) store the data on magnetic media. The two IBM 3380-AD4's or equivalents were "head of string disk drives" which attach directly to the IBM 3880-003 controller. The controller's function, as its name implies, is to control the operation of the disk drives. The IBM 3380-BD4's or equivalents are "non-head string disk drives" which attach to the AD4's in a string. No bid solicitation protest was filed by Memorex prior to the submission of its bid. On April 7, 1986, bids for the purchase and financing of IBM (or equivalent) Direct Access Storage Units were timely submitted by: Memorex Corporation -- for the Memorex Equipment which was alleged to be equivalent to IBM Direct Access Storage Units. Amdahl -- for Amdahl equipment allegedly equivalent to IBM Direct Access Storage Units, but which did not attach to the IBM Controllers. Government Leasing -- for IBM Direct Access Storage Units. Municipal Leasing - for IBM Direct Access Storage Units. Capital Financial Assets -- for IBM Disk drives. The Memorex bid provided for four (4) Memorex 3680 Direct Access Storage Units (disk drives) one (1) Memorex 3683 Dual Path Storage Controller one (1) Memorex 6240 or 3680 High Density Package Direct Access Storage Unite and one (1) Memorex 3888 controller. The purpose of the Memorex 3888 controller was to provide the connection between DOT's IBM 3880 controller and Memorex's disk drives. The "Memorex Equipment" met the sixty (60) square space limitation as set forth in the Invitation To Bid. The total price of the Municipal bid was $526,233.00. The total price of the Memorex bid was $504,854.00. On April 11, 1986, DOT posted the bid tabulation disqualifying the bids of Memorex and Amdahl as nonresponsive for failure to meet the bid specifications and awarding Contract No. APO886C2 to Municipal as the lowest responsive bidder. Memorex's bid was declared nonresponsive for three main reasons: The bid specifications required that the direct access storage control units attach to existing IBM controllers. Memorex's direct access storage units could not attach to the IBM 3880-003 Control Unit. DOT required redundancy within the system and intended to cross- connect the direct access storage devices to achieve that. Because Memorex's direct access storage units would not attached directly to the IBM 3880-003 controller, redundancy could not be achieved. IBM direct access storage units have in-place production units that can be field upgraded to double density. Memorex disk drives could not be upgraded to double density and did not have double density production units in the field. On April 14, 1986, Memorex filed its Notice of Protest of DOT's intent to award the contract to Municipal, and on April 24, 1986, Memorex filed its Formal protest with DOT. The configuration of Direct Access Storage Devices as proposed by Memorex and shown in Memorex's Exhibit No. 4 and the configuration as contemplated by DOT and shown in DOT's Exhibit No. l both require a Memorex 3880 controller to provide the connection between DOT's IBM 3880 controller and Memorex's 3680 Direct Access Storage Units. The configuration of Direct Access Storage Devices as contemplated by DOT in Bid No. APOB88C2 provides for the Direct Access Storage Devices to attach directly to DOT's IBM 3880 controller without using an intervening controller for the attachment. Controller redundancy is the process by which the controllers and the attached disk drives are cross-connected to guard against the chance of failures which could cause the loss of data and loss of access to data. Although the chance of such failures is low, DOT has determined that the possibility is high enough to warrant guarding against such failures. To obtain controller redundancy DOT began planning to cross-connect the IBM 3880 controllers eighteen (18) months ago. At this point cross- connecting has not occurred at DOT, but one of the reasons for this bid was to begin the process and provide redundancy. To obtain controller redundancy the disk drives subject to this bid must have the ability to directly attach to the IBM 3880 without an intervening controller. The more credible evidence shows that in considering the common practice and custom of the data processing industry the use of a specific model number of an IBM Direct Access Storage device (or equivalent) that must "attach" to a specific model number of an IBM controller in an invitation to bid establishes a benchmark which a non-IBM direct access storage device must equal in order to satisfy the specifications of the invitation to bid. In the instant case, DOT did establish a benchmark and all of the specifications of the IBM-3380-AD4 and 3380-BD4 Direct Access Storage Device, including how it attached to the existing IBM-3880 controller allowing for cross connection to obtain controller redundancy, were effectively included in Invitation to Bid. Considering the common practice and custom of the data processing industry in bidding projects, the bid specifications contained in the DOT Invitation To Bid and used by DOT in awarding Contract No. APO886C2 were clear and unambiguous. The equipment that was the subject of the Memorex bid did not meet the intent of the specifications of the Invitation To Bid. The DOT Invitation To Bid did not contain a "no substitute" limitation as provided for in Rule 13A-1.02(16), Florida Administrative Code, nor was it necessary since at the time of the Invitation To Bid both DOT and DGS were of the opinion that other suppliers of direct access storage devices, at least Memorex, could supply an "equivalent" direct access storage device that would attached directly to DOT's existing IBM 3880 controller. Although the word "equipment" appears throughout the Invitation To Bid, the evidence does not support the contention of Memorex that this allows the substitution of a configuration of equipment that performs the same functions as the specified Model of IBM direct Access Storage Device which can only attach to the IBM 3880 controller through an intervening Memorex controller. The "Memorex Equipment" has some of the same features and can perform some of the same functions as the "IBM Equipment" but the "Memorex Equipment" is not equivalent to the "IBM Equipment" specified in the Invitation To Bid. Municipal failed to insert its corporate charter number on the Bidder Acknowledgment Form, however, there was no space provided on the form for the corporate charter number even though paragraph 5, Legal Requirements of the Special Conditions attached to the Invitation To Bid specifically states that a space is provided. Municipal did not initial all twenty-three (23) special items attached to the Invitation To Bid, however, it did reference in its cover letter that the contract would include all of the terms and conditions of the bid and its response. Municipal failed to comply with Section 9, Services and Warranty of the Invitation To Bid when it did not include any attachment concerning service and warranty. Paragraph 6 of the Special Conditions attached to the Invitation To Bid provides for rejecting the vendor's bid for failure to comply with the mandatory requirements in the specifications. The Invitation To Bid and attachments do not define mandatory requirements and there was no other evidence introduced that defined mandatory requirements. DOT waived Municipal's failure to comply with those requirements listed in finding of facts 30, 31, and 32 on the basis that they were minor irregularities and its cover letter embraced all the terms and conditions of the Invitation To Bid. There was no evidence that Memorex made any inquiry of DOT in regard to clarifications of the specifications after receiving the Invitation To Bid and before submission of its bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that a final order be entered dismissing the bid protest submitted by Memorex Corporation on State Bid No. APO9886C2 and awarding the contract to MUNICIPAL LEASING CORPORATION. Respectfully submitted and entered this 11th day of July, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of July, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO.86-1479BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner has interspersed legal arguments throughout its Proposed Findings of Fact which have some facts stated within the legal arguments but not stated specifically as a finding of fact, and in those instances I have rejected the "Proposed Findings of Fact" as arguments. Covered in the background part of this Recommended Order. (a-c). Adopted in Finding of Fact 1(a-c). Adopted in Finding of Fact 2. (a-c). Adopted in Finding of Fact 11 (a-c). (a-e) Adopted in in Finding of Fact 14(a-c). Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. 8 (a-b). Adopted in Finding of Fact 18 (a-c). Rejected as legal argument. Rejected as not comporting with the substantial competent evidence in the record. Adopted in Finding of Fact 19. Adopted in Finding of Fact 15. Adopted in Findings of Fact 23, 24, 25, 26 and 27 but clarified. First sentence adopted in Finding of Fact 9. The second and third sentences are facts but rejected as irrelevant and immaterial because DOT and DGS both changed positions due to subsequent information supplied by Michael White. The fourth sentence is rejected as not comporting with the substantial competent evidence in the record. 15-16. Rejected as legal argument. Adopted in Finding of Fact 29 but modified. Adopted in Finding of Fact 18 but clarified. First two sentences rejected as immaterial. The next two sentences adopted in Finding of Fact 29 but modified. The last sentence is rejected as not comporting with the substantial competent evidence in the record. Rejected as not comporting with the substantial competent evidence in the record. The first two sentences rejected as not comporting with the substantial competent evidence in the record. The last two sentences rejected as argument. The first sentence rejected as not comporting with the substantial competent evidence in the record. The balance of the paragraph rejected as legal argument. The first two sentences rejected as legal argument and the last sentence rejected as not comporting with the substantial competent evidence in the record. First sentence rejected as not comporting with the substantial competent evidence in the record. The last sentence rejected as immaterial and irrelevant. Rejected as legal argument. Rejected as immaterial. First sentence rejected as legal argument and the balance rejected as immaterial. First sentence adopted in Finding of Fact 22 and the balance rejected as immaterial. Rejected as not comporting with the substantial competent evidence in the record. First sentence rejected as immaterial. The second sentence rejected as not comporting with the substantial competent evidence in the record. The fact that Memorex Equipment met the 60 square foot requirement is adopted in Finding of Fact 15 and the balance is rejected as argument. The first sentence adopted in Finding of Fact 11 and the balance rejected as argument. Adopted in Finding of Fact 20. The first sentence adopted in Finding of Fact 20 but modified. The next two sentences rejected as argument and the last sentence rejected as immaterial. The first and last sentences rejected as not comporting with the substantial competent evidence in the record. The second sentence rejected as immaterial. Rejected as not comporting with the substantial competent evidence in the record. The first two sentences adopted in Findings of Fact 11 and 15 and the balance rejected as argument. Adopted in Findings of Fact 30, 31 and 32 but clarified. Adopted in Finding of Fact 33 but modified. Adopted in Finding of Fact 35. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. (a-c) Adopted in Finding of Fact 11 (a-c). Adopted in Finding of Fact 13. Adopted in Finding of Fact 14(a-e). Adopted in Finding of Fact 17. (a-c). Adopted in Finding of Fact 18(a-c). Adopted in Finding of Fact 21 but modified. Adopted in Finding of Fact 20 but modified. The first three sentences rejected as irrelevant and immaterial. The balance is not stated as a finding of fact but as testimony of witnesses and is rejected as argument. Adopted in Finding of Fact 22 but modified. Adopted in Findings of Fact 1, 2, 3, 4 and 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. COPIES FURNISHED: Carolyn S. Raepple HOPPING, BOYD, GREEN & SAMS 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 Larry Scott Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
