The Issue The issue in this case is whether Respondent violated section 760.08, Florida Statutes, of the Florida Civil Rights Act of 1992 (“FCRA”), by denying Petitioner the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of Petitioner’s handicap.
Findings Of Fact The Parties Petitioner Smith is an adult male who resides in Sunrise, Florida. Respondent 7-Eleven is a Texas corporation, with its headquarters located at 3200 Hackberry Road, Irving, Texas. Respondent owns, operates, and franchises convenience stores in Florida under the trademarked name “7-Eleven.” Procedural Background On or about March 28, 2018, Smith filed a Public Accommodation Complaint of Discrimination with FCHR, alleging that 7-Eleven, Inc., through its agent, violated section 760.80 by denying him full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of handicap. After conducting an investigation, FCHR issued a Determination: Reasonable Cause on or about September 19, 2018, finding reasonable cause to believe that an unlawful practice occurred. Smith timely filed a Petition for Relief on October 16, 2018, asserting that 7-Eleven had discriminated against him in a place of public accommodation on the basis of handicap. This charge, as set forth in the Petition for Relief, is the subject of this de novo proceeding. Events Giving Rise to this Proceeding On September 16, 2017, Smith arrived at the Store to purchase gasoline. He was accompanied by Mrs. Smith and his daughter, Rochelle Smith. At that time, the Store was a franchised 7-Eleven convenience store and gas station. HA&A Enterprises, Inc. (“HA&A”), owned by Sumera Shahzadi (“Shahzadi”), was the franchisee. Immediately upon arriving at the Store, Smith went inside to use the restroom, while Mrs. Smith remained outside to pump gas. Smith testified, credibly, that he had a stroke and, as a result, walks slowly with a visible limp. He testified that he sometimes, but not always, uses a cane to assist him in walking. He was not using a cane when he entered the Store on September 16, 2017. Upon entering the Store, Smith discovered that the restroom was locked. Smith asked Shahzada Hussain (“Hussain”), who was working behind the counter, for the restroom key so that he could use the restroom. Hussain told him that the restroom was out of order and did not give him the key. The evidence does not establish that Hussain was aware of any disability or handicap that Smith may have.4/ Because Smith was unable to use the restroom, he was forced to urinate outside, in the front of the Store. Smith had difficulty pulling down his pants, and he urinated on himself. He testified, credibly, that other persons were present at the Store and saw him urinate on himself. Mrs. Smith assisted Smith in pulling up his pants, then went inside the Store and asked Hussain for the key to the restroom. Hussain gave her the key. She went into the restroom and found it to be in working order. She also noticed that no “out of order” sign was posted on the restroom door. Mrs. Smith then took numerous photographs of various documents on the wall of the Store. These documents included: a Broward County Local Business Tax Receipt for the period of October 1, 2016, to September 30, 2017, showing the business name as “7-Eleven #35031” and the business owner as “7-Eleven Inc. & HA&A Enterprises, Inc.”; the 2016 Florida Annual Resale Certificate for Sales Tax issued to 7-Eleven Store #35031, HA&A Enterprises, Inc.; a Florida Department of Environmental Protection Storage Tank Registration Placard, 2015-2016, issued to 7-Eleven, Inc., Store #35031; a National Registry of Food Safety Professionalism certificate issued to Shahzada Hussain; a Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Temporary License/Permit; a document titled “Notice,” with the name “7-Eleven” handwritten as the business authorized to engage in the money transmission business; a Department of Agriculture and Consumer Services Liquefied Petroleum Gas License issued to 7-Eleven Store #35031; and a ServSafe Certification issued to Sumera Shahzadi. The photographs, along with a written description of each document depicted in the photographs, were admitted into evidence at the final hearing. At that time, Mrs. Smith also photographed the Store’s restroom door, on which signs reading “MEN” and “WOMEN” were hung. Each of these signs depicted a wheelchair symbol, presumably indicating that the restroom was handicapped- accessible. The restroom door did not have a sign posted indicating that it was out of order. Mrs. Smith also photographed Shazhadi and Hussain as they were working behind the counter of the Store. Mrs. Smith referred to Shazhadi and Hussain as “the owners” of the Store in her testimony at the final hearing regarding the September 16, 2017, incident.5/ Shortly after the incident, the police arrived at the Store on an unrelated matter. At the direction of the police officer investigating the unrelated matter, the Smiths did not purchase gasoline at the Store that day, and went to another store to purchase gas. Mrs. Smith testified that she frequently patronized the Store, both before and after the September 16, 2017, incident. As noted above, Smith credibly testified that other persons present at the Store saw him urinate on himself. Smith is a member of the clergy of a local church and, thus, is a well-known person in his neighborhood, where the Store is located. The credible evidence establishes that Smith was extremely embarrassed and humiliated, and experienced emotional distress as a result of having urinated on himself in public view. He testified that this incident so embarrassed him that he may move from the community or from the state. No evidence regarding any quantified or quantifiable injury or damages that Smith may have incurred as a result of the incident was presented. On or about November 14, 2017, the Smiths filed a complaint regarding their September 16, 2017, experience at the Store through 7-Eleven’s complaint hotline. Mrs. Smith testified that in one of the telephone conversations with the 7-Eleven corporate office, they were given an incident claim number. On or about November 19, 2017, Mavis Steffan, the 7-Eleven corporate field consultant for the subgroup of 7-Eleven stores that includes the Store, contacted the Smiths and spoke to them regarding the September 16, 2017, incident at the Store. Mrs. Smith testified that when the Smiths spoke with Steffan on November 19, 2017, she (Steffan) told them that on the date of the incident, the Store was a private franchise, and that on October 23, 2017, the Store “became corporate”——meaning that 7- Eleven, Inc., began operating the Store. Steffan apologized for the incident, invited the Smiths to patronize the Store again, and told them that Smith was free to use the restroom at the Store. Relationship between the Store and 7-Eleven Steffan testified at the final hearing regarding the relationship between the Store and 7-Eleven, as it existed on September 19, 2017. 7-Eleven and HA&A entered into a 7-Eleven, Inc. Florida Individual Store Franchise Agreement (hereafter, “Franchise Agreement” or “Agreement”), effective March 23, 2016, regarding the Store. The Franchise Agreement terminated on October 23, 2017, and, as of that date, 7-Eleven, Inc., began operating the Store.6/ Therefore, the Store was a franchised store on September 19, 2017, the date of the incident. As discussed above, HA&A was the franchisee. Pursuant to the Franchise Agreement, HA&A was an independent contractor. The Agreement provided that the franchisee——here, HA&A——controlled the manner and means of the operation of the franchised store, and exercised complete control over and responsibility for the conduct of its agents and employees, including the day-to-day operations of the franchised store. The Agreement expressly provided that the franchisee’s agents and employees could not be considered or held out to be agents or employees of 7-Eleven, and could not incur any liability in the name of, or on behalf of, 7-Eleven. The Agreement further provided that all employees of the franchised store were solely those of the franchisee, and that no actions taken by the franchisee, its agents, or its employees would be attributable to 7-Eleven. As part of the Franchise Agreement, HA&A also agreed to comply with 7-Eleven’s Operations Manual (“Manual”). Provisions in the Manual stated that the franchisee was solely responsible for setting the policies and procedures to operate his or her store in accordance with the laws of the legal jurisdiction in which the store was located, and that the franchisee was solely responsible for the actions of its employees while on the job. Additionally, training materials provided by 7-Eleven to franchisees for use in training franchisee employees expressly informed those employees that they were not “in any way considered to be an employee, agent[,] or independent contractor of 7-Eleven, Inc.,” and that 7-Eleven did not “assume any liability for providing you these training materials.” Consistent with these provisions, Steffan testified that the franchisee——here, HA&A——was solely responsible for the overall operations of the Store, including supervising, hiring, firing, promoting, and disciplining Store employees. HA&A also was solely responsible for enforcing workplace rules, policies, and procedures for the Store. Based on this evidence, it is determined that HA&A was solely responsible for the actions of its employees and agents, including Hussain’s actions on September 16, 2017, toward Smith. Stated another way, the evidence establishes that 7-Eleven was not responsible for Hussain’s actions in the Store, including his actions on September 16, 2017, toward Smith while he (Smith) was in the Store.
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 dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of March, 2019.
The Issue Whether Petitioner proved that Respondent discriminated against her on the basis of her race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and relevant facts: Scott is an African-American woman. On May 22, 2015, Scott visited the McDonald's in Marathon, Florida, with her husband in the afternoon. Scott ordered two meals, including a hamburger, and testified that the type of hamburgers she received at the inside counter were incorrect. Scott complained to the counter staff and was provided the correct hamburgers and ultimately received the food that she ordered. Scott then complained that the new burger she was given was cold. She insisted on getting another burger and also demanded to keep the first one. There were several customers inside the McDonald's on the afternoon in question, and Scott's actions and demeanor were visible to and done in the presence of the other customers. Scott became loud and started screaming at the employee(s) behind the counter. Scott's dissatisfaction and yelling caused a disturbance in the store in front of other patrons and also caused patrons in the drive-through line to ask what was going on inside. The disturbance Scott was creating escalated to the point that the counter employee could not handle Scott and had to turn the matter over to a supervisor, who tried to quell the problem. The supervisor was not successful either. One of the managers of McDonald's called the police in response to Scott's disruptive behavior. It was not until then that Scott left the service counter and sat back down.1/ Deputies Matthew O'Neill and Rose DiGiovanni of the Monroe County Sheriff's Department arrived. Upon their arrival, Scott was still yelling, protesting, and being disruptive, again, inside the restaurant, around other patrons. Because Respondent requested a trespass notice be issued, Deputy O'Neill reminded Scott that, if she did not leave the premises, she would be arrested. Instead of promptly departing, Scott demanded her money back. Deputy O'Neill advised Scott that the restaurant did not have to refund her the money, particularly if Scott was going to keep the food she was given. McDonald's staff nevertheless decided to refund Scott her money in an effort to accommodate her and resolve the matter. Scott testified that she did receive her money back. As they were being escorted out by Deputies O'Neill and DiGiovanni, Scott's husband told Deputy O'Neill to take off his uniform so that he could fight him. Deputies O'Neill and DiGiovanni escorted Scott and her husband out of the premises and advised them of the trespass warning that McDonald's had asked to be issued. Once outside, Scott continued to yell at the officers across the parking lot. Scott never mentioned to the staff or officers that her race (African-American) or race discrimination by McDonald's, or its staff, played any role in (1) the service or hamburger product or type delivered to Scott during the incident or (2) McDonald's response to the incident. Likewise, the undersigned heard no persuasive evidence to suggest or prove that race discrimination played any role in the incident that day. No action, inaction, or treatment of Scott was because of her race. Other than conclusory allegations, there were no facts, either direct or circumstantial, to prove that Scott's race played any role in what she was served or how she was treated by McDonald's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 26th day of May, 2016.
The Issue Whether Respondent subjected Petitioner to employment discrimination by refusing to hire Petitioner based upon Petitioner?s disability. Whether Respondent failed to make reasonable accommodations for Petitioner?s physical disabilities.
Findings Of Fact Respondent is a trucking company that has over 7,000 trucks that carry payload throughout the country. Petitioner alleges that Respondent did not hire him as a truck driver because Petitioner is disabled, or because Respondent perceived that Petitioner had a disability. Petitioner?s claimed disabilities are a skip of the heart and lower back pain. Petitioner completed his initial application for a truck driving position with Respondent on November 6, 2008, which Respondent received on December 10, 2008. In accordance with Respondent?s hiring process, once Respondent receives an initial application for a driver position, it conducts a preliminary review of the information provided by the applicant. If an applicant provides sufficient information to pass preliminary review, Respondent then sends the applicant a pre-approval letter with an attached “Pre- Training Checklist,” which sets forth a number of requirements for hiring. Respondent?s Pre-Training Checklist requires applicants to have three years of work history. Respondent uses work histories for references from previous employers to check on the background of its applicants as part of Respondent?s obligation to the public to ensure that the drivers it hires will be safe. Respondent?s pre-approval letter advises applicants that “[t]his pre-approval is contingent upon further background investigations, including motor vehicle reports and the successful completion of the hiring process.” Petitioner?s initial application contained no work history. Instead, Petitioner wrote in his application that he had lost his job because the company he was working for had gone out of business, and that he was a stay-at-home dad. Although Respondent sent Petitioner a pre-approval letter, Respondent requested Petitioner to submit additional information regarding his income and work history. Petitioner then submitted information demonstrating that he had no work history in the three years prior to his application. Thereafter, Respondent declined to hire Petitioner based upon his lack of work history. Although Petitioner claims that Respondent failed to hire him because Petitioner was disabled, the evidence submitted by Petitioner was insufficient to show that Petitioner ever informed Respondent of his alleged disability during the application process. Petitioner argued at the final hearing that tax returns and Social Security Benefit Statements submitted to Respondent as part of the application process to verify Petitioner?s earnings should have alerted Respondent to the fact that Petitioner was disabled.1/ Those returns and statements, however, standing alone, do not demonstrate that Respondent was made aware that Petitioner was claiming to be disabled, especially in light of the fact that Petitioner produced no evidence that Respondent received any other information whatsoever from Petitioner, Petitioner?s truck-driving school, or any other entity about Petitioner?s claimed disability or physical limitations, prior to making the decision not to hire Petitioner. Respondent denied receiving such information, and it is found that Respondent did not receive information from any person or entity regarding Petitioner?s alleged disability prior to making the decision not to hire Petitioner. Regarding Respondent?s alleged failure to accommodate, Petitioner testified that, in order to accommodate his disability, he would not be able to load or unload trucks, and would need to be given time to visit his doctor. Petitioner, however, failed to show that he ever requested an accommodation from Respondent. Moreover, the ability to load and unload trucks is an essential duty of the driver position for which Petitioner applied. At the final hearing, Respondent provided evidence that it employs and provides accommodations for a number of drivers with disabilities. Respondent?s evidence that it hires disabled persons is consistent with guidelines adopted by Respondent stating that Respondent “provides equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, marital status or veteran status in accordance with applicable federal and state laws.” In sum, Petitioner failed to demonstrate that Respondent discriminated against him by refusing to hire him because of his disability or that Respondent failed to make reasonable accommodations for Petitioner?s disability. Rather, based upon the evidence adduced at the final hearing, it is found that Respondent decided not to hire Petitioner because he failed to provide three years of work experience required of all applicants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 14th day of April, 2011. 1/ The tax statements consist of forms 1040EZ for 2006 and 2007 signed by Petitioner and his wife. On both forms, the lines for “occupation” next to Petitioner's wife's signature state, “Disable/Cashier.” The occupation lines on both forms next to Petitioner's signature state, “Disable.” The Social Security Benefit Statements consist of five Form SSA-1099 Social Security Benefit Statements for years 2005 through 2007, including Petitioner's wife's 2005 statement for benefits totaling $9,494.40, Petitioner's 2006 statement for benefits totaling $7,542.00, Petitioner's wife's 2006 statement for benefits totaling $9,882.00, Petitioner's 2007 statement for benefits totaling $7,794.00, and Petitioner's wife's 2007 statement for benefits totaling $10,206.00. 2/ Unless otherwise indicated, all references to statutes or rules are to the current, 2010, versions, which have not been substantively revised since the relevant hiring decision in this case. 3/ See Finding of Fact 13, supra. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Edward Rhoades 7470 Northwest 167th Place Trenton, Florida 32693 Ignacio J. Garcia, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has a disability (back injury) for purposes of Chapter 760, Florida Statutes, and whether her termination was because of her race (Black) or due to excessive absenteeism and tardiness.
Findings Of Fact The Petitioner first worked for Mold-Ex Rubber Company (Mold-Ex) in November 1998. Her duties were in the extrusion department where she worked bonding rubber strips together on a "hot plate machine," hanging them to dry and then transferring them to be stored in a box for shipping. Nick Bores, Human Resources Coordinator at Mold-Ex, explained that she was responsible for transferring completed, bonded rubber strips and was responsible for moving four to five strips at a time. The weight of those strips was approximately one pound per strip. The Petitioner remained a probationary employee throughout her tenure. The probationary period for new employees at Mold-Ex is ninety days. She was never entitled to benefits and never received any because she remained on probationary status. Several weeks after she first began employment at Mold- Ex the Petitioner was in a car accident, which was unrelated to her employment. The accident occurred on December 4, 1998. Mr. Bores was unaware of the length of time required for her recovery from her car accident, but in any event her initial employment with Mold-Ex ended at some point after the car accident in December 1998. She did not return to work after that accident. In May 1999, the Petitioner submitted a doctor's note to Mr. Bores, which released her to return to work without any restrictions as of May 17, 1999. Mr. Bores was under the belief that he was under no obligation to re-hire the Petitioner because she had left her employment after the accident while still a probationary employee. Nevertheless, he re-hired her as a probationary employee in May 1999, and was given to understand by the Petitioner that, as of May 17, 1999, she was under no medical restrictions and could return to regular duties. Mr. Bores hired Ms. Prather to work at the rate of $6.00 per hour and she averaged $960.00 per month in pay. The Petitioner maintained that she was "averaging $288.00" per month in overtime. She did not present any evidence to corroborate her testimony to demonstrate her average overtime pay or that she even earned any overtime pay. Considering her short service with Mold-Ex, which was only a month in 1998 and less than two weeks in 1999, it cannot be concluded what she would have averaged in overtime pay nor can it be concluded, because there is not credible evidence, that she actually worked overtime. In any event, she worked in a department where her job duties including trimming the edges of square pieces of rubber with a sharp knife. During her second week of employment in 1999, the Petitioner left work early on May 28, 1999, to see her physician. She did not return to her job, but her next scheduled day at work was May 31, 1999. She visited her doctor again on June 2, 1999, when she obtained a physician's note (Petitioner's Exhibit A) and on June 2, 1999, gave the note to Mr. Bores. The Petitioner did not present evidence of any other doctor's note regarding medical restrictions or advice. The Petitioner had earlier submitted a note that released her to full duty as of May 17, 1999. Despite her return to health according to her doctor's note, she was unable to be at her work station on time and sometimes failed to appear for work at all. Respondent's Exhibit five reflects the Petitioner's actual "time punches" between May 17, 1999, and May 28, 1999. This exhibit reflects a pattern of tardiness and absenteeism. Mold-Ex has an attendance policy in force, shown by Respondent's Exhibit three. That policy requires its employees to be at their work stations ready to work at their scheduled time every day that their work is scheduled. Additionally, employees are expected not to leave their work stations early. Absences, tardiness and leaving early are not excused unless the supervisor has approved the time off in advance. An employee cannot be excused from absence or tardiness by calling in at the start of his or her shift. Depending on the business needs of each department, a supervisor can accept as little as 24-hours advance notice of an occurrence in order for it to be excused. The proper policy for having an excused absence or time off requires pre-approval by the employee's supervisor. Violations of this policy can lead to termination. Mold-Ex has terminated both white and black employees for attendance violations. Ms. Prather admitted that she was aware of the attendance policy contained in Respondent's Exhibit three and that she had received a copy of that policy. She agreed that if she was not at her work station at her scheduled time that was an "occurrence" or violation of the policy. Ms. Prather agreed that leaving work early also was a violation of the policy. She agreed that her shift began at 7:00 a.m., and ended at 3:30 p.m., and that she was scheduled to work five and sometimes six days per week. She agreed that to be in compliance with the attendance policy she was required to clock- in at 7:00 a.m., and clock-out at 3:30 p.m., each day when she was scheduled to work. She also agreed that unless an employee contacted the company prior to the absence or tardy occurrence that the occurrence would be unexcused and a violation of the policy. The Petitioner agreed that if she had absences or tardiness during the period that lasted from May 17, 1999 through June 4, 1999, then those occurrences would count against her under the Respondent's attendance policy. She also admitted that the company could terminate her for having too many occurrences in violation of the attendance policy. The Petitioner's absences or instances of being tardy are depicted on Respondent's Exhibit five. She was absent on May 18, 1999; late to work on May 19, 1999 and May 20, 1999. On Saturday, May 22, 1999, she was "technically absent" because she clocked in for only one minute. The next scheduled work day was May 24, 1999, and she was absent. She was also absent on the following day, May 25, 1999. She was late to her work station the next three days of that week: May 26 - May 28, 1999. She clocked out early on May 28, 1999, and would have been scheduled to be at work on May 31, 1999, and June 1, 1999, but she failed to come to work on those days. This is a total of 13 occurrences or violations of the attendance policy, which she effectively did not dispute. The Petitioner did not present evidence of any occurrence being excused under the policy. Mr. Bores did not recall the Petitioner calling in for advance approval regarding any of these occurrences. Ms. Prather suggested that she may have informed Mr. Bores that she would miss a few days after May 28, 1999, but she did not testify that she informed him prior to the shifts for which she was scheduled to work. On rebuttal she claimed that she had called the receptionist on May 28, 1999, to inform the Respondent that she would be taking a few days off and would bring in a doctor's note when she could return to work. However, she admitted that she did not speak to her own supervisor about her need for time off, which was required under the policy for time off to be excused. She had no explanation for any of her other violations of the attendance policy. She claimed that the note, Petitioner's Exhibit A, released her from work for two days. The note, however, does not reflect that any days off were advised by the physician. Rather the note merely states that "Ms. Prather has been advised to avoid repetitive overhead work, lifting over 15-20 pounds and repetitive bending." This note did not inform Mold-Ex of any necessary absences or request any excuse for missed work. The Petitioner admitted that she did not provide the note to the company until June 2, 1999, after the scheduled shifts of May 31, 1999 and June 1, 1999. Accordingly, she did not follow the policy for obtaining excused absences. The note itself, as well as Ms. Prather's admission of her failure to follow policy, shows that her contention that the note released her from work for two days is without merit. After reviewing Ms. Prather's time records on June 1, 1999, Mr. Bores decided on that day to terminate her because of her violations of the attendance policy. He identified at least nine violations of the attendance policy in less than two weeks. Mold-Ex has terminated employees with fewer attendance occurrences than Ms. Prather had accumulated at the time Mr. Bores decided to terminate her. A continuing pattern of being late, even as little as two to four minutes, is sufficient for termination under the attendance policy adopted by Mold-Ex. Her poor attendance was the only reason for her termination. Mr. Bores discussed the termination with Ms. Prather on June 2, 1999. She testified that she presented him with her doctor's note (Petitioner's Exhibit A) on June 2, 1999. Nevertheless, by June 2, 1999, Mr. Bores had already decided to terminate her for poor attendance based upon her record to that point. Mr. Bores never considered that the Petitioner had a disability. If she had not violated the attendance policy with so many occurrences of absenteeism and tardiness he would have considered her for any available work at Mold-Ex within her doctor's restrictions. Mr. Bores completed a termination form for the Petitioner on June 4, 1999. Because the form was not completed until June 4, 1999, which may have been the date she signed the form, her termination was considered effective on that date, although Mr. Bores had decided to terminate her on June 1, 1999. When terminating employees for failure of their probationary period, detailed forms are not required under Mold-Ex's regularly adopted personnel policy. The termination form that is Respondent's Exhibit four is consistent with the company policy and practice for terminating probationary employees. The company form reflects one comment describing a reason for termination: "probation." This signifies that the employee violated her probationary status and, in this case, that she failed her probationary period because of attendance violations. Failure to pass the probationary period is an issue that falls within "category 5" of the termination form. The only work restrictions placed on the Petitioner by her physician were represented by Petitioner's Exhibit A. The Petitioner agreed that she could have performed many different jobs under those restrictions. In fact, she testified that Petitioner's Exhibit A reflects restrictions that would have prevented her from working only in a "very narrow" range of jobs. Nevertheless, after being terminated from Mold-Ex, effective June 4, 1999, the Petitioner did not obtain employment until January 26, 2000, when her doctor gave her a full release to return to work. She admitted that she did not seek other employment during that period of time when she was without work. Additionally, she admitted that she could have obtained a full release to return to work prior to January 2000 if she had requested such from her doctor. Thus, it has not been proven that she acted to mitigate any damages caused by her loss of employment with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitioner's charge of discrimination, with prejudice, in its entirety. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 4th day of March, 2002. COPIES FURNISHED: Nick Bores Mold-Ex Rubber Company 8052 Armstrong Road Milton, Florida 32583 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Maldrick E. Bright, Esquire Bright Law Office, P.A. 5189 Stewart Street Milton, Florida 32570 Heather F. Lindsay, Esquire Johnston, Barton, Proctor & Powell 1901 Sixth Avenue, North, Suite 2900 Birmingham, Alabama 35203 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent failed to make a reasonable accommodation in order to allow the Petitioner to perform his job functions and thereby committed an unlawful employment practice constituting discrimination that is prohibited by the Florida Civil Rights Act.
Findings Of Fact Miami-Dade County is a political subdivision of the State of Florida. The Respondent, Miami Dade County Consumer Service, is a department of Miami-Dade County. The Petitioner, Carlos A. Mangual, is an employee of Miami-Dade County, Florida (the County). He currently is employed as the security manager for the Port of Miami. The Petitioner has held his current position since April of 2001. Prior to his current position, the Petitioner was a Parks and Recreation Security Supervisor for the County. As a supervisor he was eligible to participate in seminars and training meetings that were geared toward making supervisors aware of personnel rules and regulations. During his employment with Parks and Recreation, the Petitioner attended a meeting regarding the Americans with Disabilities Act (ADA). Mr. Collins is the County's Employee Relations ADA specialist who was the guest instructor for the supervisor's certification program. Mr. Collins met the Petitioner at the ADA meeting and discussed with the Petitioner whether the Petitioner's weight (and size) would be considered a disability under the ADA provisions. Subsequently, while employed with the County, the Petitioner was involved in an automobile accident that resulted in a knee injury. The Petitioner has undergone two surgeries to correct the damaged knee. Because the knee has adversely affected the Petitioner's gait, he also suffers back pain from the incident. The knee injury, resultant back pain, and residual physical impairments have caused the Petitioner to receive a workers' compensation overall impairment rating of 8 percent. For purposes of this case, the Respondent does not challenge such impairment. Subsequent to the accident and knee injury, the Petitioner applied for a position with the Respondent. Such position, Consumer Protection Inspector/Officer, required the Petitioner to attend to office duties for approximately 1-2 hours per day and to "be on the road" the rest of the time. Consequently, while working as a Consumer Protection Inspector, the Petition logged anywhere from 100 to 200 miles per day in a County-owned vehicle. The Petitioner began his probationary status with the Respondent in January 2000. During the probationary period, the Petitioner received monthly job performance evaluations. After approximately 5 months and while still during his probationary status, the Petitioner was not retained as a Consumer Protection Inspector. Instead, he was returned to the Parks Department where he continued employment with the County until he began his current position with the Port. The Petitioner considered the return to Parks a "demotion" based upon his alleged disability. It is undisputed the Petitioner requested a larger vehicle during his tenure with the Respondent. The Petitioner maintained the mileage logged in small vehicles was damaging to his knee and uncomfortable. The Petitioner claims he was entitled to an accommodation under the ADA because of his alleged disability. During his time with the Respondent, the Petitioner did not make a formal request for an accommodation. In fact, the credible evidence supports a finding that the Petitioner obtained the form but did not file it with supporting medical documentation as advised by the County's ADA specialist. The Petitioner maintains that the small vehicle assigned for his use required him to frequently stop and stretch. Such stops were necessary because the interior of the vehicle did not allow for an extension of his leg. There is no evidence that the employer refused to allow the Petitioner to make such stops or that the Petitioner was adversely evaluated because of the stops. During the Petitioner's probationary period, the Respondent did not have a larger vehicle readily available to assign to the Petitioner. Vehicles that might have become available would have been assigned based upon seniority with the Respondent. The Petitioner went back to Parks prior to such vehicles becoming permanently available to the Respondent. The Petitioner's impairment rating has not affected his abilities to walk every day, to drive to and from his place of employment, to shop, to engage in leisure activities, or to go to a gym once a month for workouts. There is no evidence of any life activity that Petitioner cannot perform as a result of his knee impairment. The Petitioner was fully able to perform the functions of his job. The Petitioner performed his job with the Respondent even when using a small vehicle. The Respondent never refused a request for an accommodation from the Petitioner. The Petitioner's informal inquiry regarding how to seek an accommodation was never formally filed. The Petitioner's size as well as any knee impairment contributed to the uncomfortable nature of the small vehicle used by the Respondent. This was especially true when the Petitioner was required to share the vehicle with another employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's complaint. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2002. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carlos A. Mangual 1290 Northeast 135th Street North Miami, Florida 33161 Consumer Services Miami Dade County 140 West Flagler Street, Suite 901 Miami, Florida 33128 Eric A. Rodriquez, Esquire 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993 Ana M. Urrechaga, Esquire Urrechaga, P. A. 8603 South Dixie Highway, Suite 209 Miami, Florida 33143
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his alleged disability.
Findings Of Fact Respondent, John G's Restaurant, Inc., has operated a restaurant located at 10 South Ocean Boulevard, Lake Worth, Florida, since 1973. Respondent began as a small business owned by John Giragos, Sr., and was essentially operated by his family including his children, Wendy Giragos Yarbrough; John "Jay" Giragos, Jr.; and Keith Giragos. In 1993, John Giragos, Sr., transferred ownership of John G's to Wendy Giragos Yarbrough, Jay Giragos, and Keith Giragos, and the restaurant has grown to the point where it now employs approximately 40 employees, a significant percentage of whom are minorities. Petitioner, Oswald Norton, worked as a cook at John G's for 12 years from October 1991 through March 20, 2003. His typical day included working the grill in the morning and the broiler in the afternoon. Petitioner was known as a hard-worker at John G's. Petitioner was known to have a strong temper on the job. On several occasions over the years Petitioner had outbursts directed at his fellow employees. Keith Giragos stepped in on many occasions to calm Petitioner down when he was having an emotional outburst in the kitchen. On March 20, 2003, Petitioner cooked breakfast, but was not feeling well in the afternoon. Petitioner sat on a stool in the kitchen because he felt dizzy and lightheaded. Petitioner believes he had told John "Jay" Giragos, Jr., that he had not been feeling well for two weeks, had blurred vision, was dizzy from time to time, and was on a restricted diet. Jay Giragos did not like his employees sitting down on the job and commented on this to Petitioner. Petitioner either threw or dropped forcefully a large bag of frozen french fries on a table in the kitchen and yelled at several employees who were working in the kitchen at the time. French fries spilled out of the bag and were on the table and the floor. Jay Giragos told Petitioner that he should "get the [expletive] out of the kitchen and go drive a truck." Petitioner clocked out of the restaurant and went home. In telling Petitioner to leave and go drive a truck, Jay Giragos meant he should go home and calm down. Mr. Giragos never told Petitioner explicitly that he was fired from his job. Petitioner was scheduled to work the following day, Friday, March 21, 2003, as well as Saturday, March 22, 2003, and Sunday, March 23, 2003. He then had Monday, March 24, 2003, and Tuesday, March 25, 2003, off. Petitioner failed to report to work on Friday, Saturday, or Sunday, as scheduled, and failed to call John G's to advise he would not be reporting to work. Accordingly, he was a "no-show, no-call" for three consecutive days following the March 20, 2003, incident. In the past, when he was ill, Petitioner either told his employer he would not be coming in the next day or he called from home to say he was ill. Jay Giragos knew that Petitioner usually suffered from one cold every year since he had been working at the restaurant. On March 25, 2003, Petitioner visited his physician, Susan Barish, M.D. At that visit, Petitioner was diagnosed for the first time as a diabetic. The parties stipulated that prior to March 25, 2003, neither Petitioner nor anyone at John G's had any knowledge of Petitioner's diabetes. The owners of John G's first learned of Petitioner's diabetes when he arrived at the restaurant on March 26, 2003. Respondent has a long history of accommodating its employees who suffer either from a disease or disability, or who require accommodation due to pregnancy. On March 26, 2003, rather than reporting to work at 6:00 a.m. as scheduled, Petitioner arrived mid-morning with his bundle of uniforms and asked for his paycheck. At this time, Petitioner informed everyone that he was suffering from diabetes. Petitioner claims that he asked for his job back, but none of Petitioner's owners recall his asking to be re-hired. After his absence on March 21-23, 2003, Jay Giragos was not interested in retaining Petitioner, even though he had not yet hired a replacement cook. According to Dr. Barish, Petitioner has obtained good control of his diabetes with oral medication and diet. Dr. Barish believes that Petitioner is not restricted from working as a cook or in any other occupation. Petitioner remained unemployed until October 2003, at which time he opened his own restaurant, which remained in business for eight months. During the time that he was unemployed, Petitioner lost about $13,000 in pay based upon his salary at John G's. Petitioner is currently employed as a cook at Flix Restaurant working 39.5 hours per week cooking breakfast and lunch, and performing essentially the same duties as he had performed at John G's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 26th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 F. Dean Hewitt, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. Post Office Box 4940 Orlando, Florida 32802-4940 Stewart Lee Karlin, Esquire Law Offices of Stewart Lee Karlin, P.A. 500 West Cypress Creek Road, Suite 230 Fort Lauderdale, Florida 33309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2010.
Findings Of Fact Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Petitioner has been subjected to an unlawful housing practice in violation of Section 760.23, Florida Statutes.
Findings Of Fact At all times pertinent to these matters, Respondent operated an apartment building, Loutitt Manor, encompassing 177 apartments. The facility caters exclusively to elderly tenants. On August 3, 2001, Petitioner filed a Charge of Discrimination with FCHR alleging that Respondent discriminated against Petitioner in violation of the Florida Fair Housing Act, Part II, Chapter 760, Florida Statutes, and appropriate federal regulation. Allegedly, the discrimination was based on Respondent's failure to make reasonable accommodation for Petitioner's handicap. Following FCHR's Determination of no reasonable cause, dated June 24, 2002, Petitioner filed a Petition for Relief on July 26, 2002. The case was subsequently transferred to DOAH. The testimony of Respondent's facility manager establishes that there are only 100 parking spaces for the 177 apartments in the building. The 100 parking spaces are assigned to specific tenants who are expected to park in their assigned space. Petitioner has an assigned space. A priority list is maintained for persons who need to park closer to the building. Respondent's rules require that anyone desiring to have their name placed on the list for such accommodation must first provide a written request to Respondent's office. Secondly, if the need for closer parking is a personal disability, then the name and address of a third party professional must be provided and the tenant must sign appropriate documentation (medical releases, etc.) to permit Respondent to obtain the medical information necessary to make a reasonable accommodation. Respondent does not place tenants on the priority parking list simply because they possess a handicapped parking placard issued by the State of Florida because 80 percent of the tenants in the facility possess such placards. Petitioner has never specifically complied with Respondent's rule requirements, maintaining that he cannot supply third-party documentation from medical personnel regarding his medical need for a closer parking space, because he is treated by the Veterans Administration (VA) and such personnel are constantly moving to other locations. By a note dated November 2, 2001, Petitioner did provide what he alleges are medical records from the VA clinic that were used by him to obtain a handicapped parking permit. While Petitioner maintains that he suffers from an episodic arthritic condition that impedes his walking the 200 feet from the building to his parking space, the records provided by him to Respondent details that Petitioner "should walk as much as possible" and that a disabled parking permit should be used only in "extreme circumstances." As established by Petitioner's testimony at final hearing, he has not been the subject of illegal discrimination by Respondent. The parties concede that Respondent has one disabled parking space closer to the facility than tenant parking. That space is designated as a handicapped space and bears signage stating that the space may only be used by visitors to the facility. Petitioner initiated this proceeding after he was warned on one occasion that he must move his car from the space or the car would be towed. Petitioner told Respondent's representative he would only be in the space for 15 minutes or less.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 18th day of October, 2002, 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 18th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert Robins, Esquire Post Office Box 1649 Daytona Beach, Florida 32115 Glenn E. Whitener 229 South Ridgewood Avenue, Unit 316 Daytona Beach, Florida 32114 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The Department of Health and Rehabilitative Services issued a Request For Proposals for a computer system for the Miami branch of the Department's Office of disability Determinations. Wang Laboratories was found by the Department's evaluation committee to have submitted the best proposal of the three received. IBM's proposal was ranked in second place by the committee. Subsequent to the receipt and evaluation of proposals, the Department withdrew the RFP," declared that an emergency existed, and proceeded on an expedited basis to purchase IBM equipment. The issue in this case is whether, during the course of these events, the Department acted according to the requirements of law.
Findings Of Fact The Department of Health and Rehabilitative Services ("Department") is responsible for the administration and operation of the Office of Disability Determinations ("ODD") which determines eligibility for federal Social disability benefits. Referrals to the ODD are made by the Social Security Administration ("SSA") offices in Florida. The ODD obtains applicant information, assists in developing disability benefit claims, and communicates the eligibility decision to the SSA. The SSA benefits are directly paid by the SSA to the recipient. The ODD operation is federally funded. During the most recent fiscal year for which data is available, the ODD handled approximately 114,000 referrals from the ESA and received approximately $27 million in federal funds. The ODD also determines eligibility for Florida's "medically needy" program, which is partially federally funded. Referrals for the medically needy program come from other Department assistance programs. During the most recent fiscal year for which data is available, the ODD handled, approximately 2,600 medically needy determinations. According to the budgeting estimates, the Department projects up to 2,000 medically needy determinations will be required during the next fiscal year, approximately one-third of which will be processed in the Miami ODD. In order to increase the productivity of state ODD operations, the SSA provides funds for the acquisition of data processing equipment to automate the data collection and disability determination process. The allocation of such funds is based upon proposals, identified as "advance planning documents", submitted to the SSA by individual states. In June or July of 1988, the Department submitted, to the SSA, an advance planning document proposing to acquire data processing equipment for the seven Florida ODD locations at a cost of almost $1.7 million. The Department's plan provided that, if funds were not available to automate all ODD locations at the same time, the Miami office be the initial location to be equipped. According to Russell Rodgers, Chief of Administrative Services for the ODD, the Miami location was identified primarily because of case load, and because the Miami employees were already utilizing a computer system. The Department's advance planning document was prepared and submitted by ODD personnel. The Department's Office of Management Systems, responsible for the agency's data processing system, had previously completed a needs analysis for the ODD. The Management Systems analysis was performed through a planning methodology identified as "STRADIS" (an acronym for "structured Analysis, Design and Implementation of Information Systems") which appears to provide a level of planning in equipment acquisitions. At some point during preparation of tee advance planning document submitted to the SSA, Mr. Rodgers spoke with a Wang Laboratories ("Wang") representative while collecting information. Wang markets a computer system configured for disability determination offices. The Wang disability determination system is used in 22 or 23 other states. In talking with Mr. Rodgers, the Wang representative suggested acquiring a new Wang system through "sole resource" purchasing rules, which permit the avoidance of competitive bidding procedures. However, Mr. Rodgers and the ODD preferred utilizing the competitive bidding process, and declined to purchase the Wang equipment under the "sole source" provisions. The advance planning document was not reviewed by Management Systems personnel. Although testimony was elicited suggesting that the ODD proposal was erroneously not submitted for review to the Department's Management Systems office, the evidence shows that, at the time the document was prepared and submitted to the SSA in 1988, such review was not specifically required. The Department's Management Systems Office is responsible for the agency's data processing information system operations. Viann Hardy is Deputy Secretary for Management Systems, and is responsible for the Department's automated information systems. Ms. Hardy reports to the agency head, Secretary Gregory L. Coler. Ms. Hardy is authorized to act on behalf of the Secretary on information system issues. Ms. Hardy supervises a staff of approximately 300 employees. During the relevant period of time, Ms. Hardy was involved in implementation of the Department's data processing plans, in supervising the consolidation of Management Systems' offices, and in the relocation of a substantial number of her employees to the newly consolidated site. Ms. Hardy had little personal involvement in the RFP prior to September 11, 1989, the date upon which notice of the recommended award was to be made. Ms. Hardy relied upon Marilyn Van Dusseldorp, an Assistant responsible for development and operation of the Department's equipment and software, for information related to the RFP. Ms. Van Dusseldorp personally reviewed the RFP drafts, provided information to Ms. Hardy, and suggested additions and amendments to the document. In April, 1989, the Florida ODD was notified by the SSA that the proposal had been approved and that $403,724 in federal funds would "likely" become available towards the close of the relevant fiscal year for acquisition of data processing equipment for the Miami ODD office. The identified funding level for automating the Miami office was based upon the ODD's cost projection for that location. The SSA did not have funds sufficient to automate the remaining offices at that time. The SSA notification, dated April 26, 1989, suggested that the ODD proceed "...if permissible under State procedures . . . to initiate action to contract for the system so that you may obligate the funds as soon as they are authorized as there may be little time between when the funds become available and the end of the fiscal year." The notification also states "[t]o minimize costs, the hardware and software you purchase should be able to utilize the PC's which the DDS already owns if replacing them would increase the overall costs." Following receipt of SSA authorization, the ODD staff initiated development of a formal "Request For Proposals" ("RFP") document for the acquisition of the planned data processing system. The ODD employees with primary responsibility for preparing the RFP had limited experience with the RFP process. Wilbert Hobbs, the ODD employee responsible for preparation of the RFP, had not done so previously. It had been several years since Mr. Rodgers, Hobbs' supervisor, had been involved in such an effort. In preparing the RFP, ODD personnel sought information from the Department's Management System's office. Three or four drafts of the RFP were produced by ODD. Management Systems personnel reviewed the drafts and suggested substantive modifications to the document, some of which were incorporated. By memo to Secretary Coler, dated June 28, 1989, Ms. Hardy recommended that the RFP be submitted to the Information Technology Resources Procurement Advisory Council ("ITRPAC") for review and that the acquisition proceed as scheduled. Secretary Coler concurred with Ms. Hardy's recommendation. Prior to June 28, Ms. Hardy had not reviewed the RFP. In the June 28 memo, Ms. Hardy, note the expedited time frame allotted for publication of the RFP, review of proposals and award of contract. She states that the advance planning document was submitted by ODD to the SSA, "without Management Systems coordination". She further notes that the proposed system is not planned to interface with other Department systems, because the ODD "indicates that federal requirements preclude access" by other Departmental programs. However, she also states that the requirement that the ODD system interface with the SSA's National Disability Determination System ("NDDS") computer (an IBM system) "should" provide that the ODD can be connected to the Department's "FLORIDA" system (also an IBM system). The FLORIDA system will provide integrated data files for the Department's economic assistance programs, and will determine eligibility, calculate benefits, and assist case workers in delivering available services. The FLORIDA system constitutes an expenditure of approximately $104 million, of which 82% are federal funds. Also on June 28, 1989, Ms. Hardy contacted Carol Pettijohn of the Information Resources Council ("IRC") and informed Ms. Pettijohn that the RFP was being forwarded for review. Ms. Pettijohn is an Information Resource Management consultant at the IRC. The IRC reviews planned information resource acquisitions and provides information to agencies as to whether the proposed acquisition meets statutory requirements and is consistent with state policy. The IRC also provides information to the ITRPAC. The ITRPAC, a Cabinet function, must review and approve agency computer equipment acquisitions which exceed a specified cost threshold. Ms. Hardy advised Ms. Pettijohn that the RFP had not been completely reviewed by her office, but that due to alleged time constraints, it was being forwarded in the draft form. It was subsequently determined that the acquisition in this case did not meet the threshold above which ITRPAC approval was required. However, Ms. Pettijohn did review the RFP and provided her expertise to the Management Systems office. During the preparation of the RFP, employees of Management Systems and Ms. Pettijohn considered the specific requirements of the ODD system as stated in the RFP document. Issues considered by the drafters included the advisability of limiting the RFP to the Miami ODD office when the remaining ODD offices would eventually be interconnected, the lack of required connection to the Department's FLORIDA system, and, whether adherence to the Department's "standards" for computer equipment purchases should be required. By letter of June 30, 1989, the SSA, advised the Department that the $403,724 requested to automate the Miami office was officially available and that the Department should proceed to ``obligate'' the funds. On July 28, 1989, the RFP ("RFP-89-RR-1") was issued. The RFP sought a data processing system far the Miami ODD office which would combine data collection, case management, statistical and fiscal operations. The system would be required to interface with the SSA/NDDS computer. The RFP aid not require vendors to specify expansion costs, connectivity to the FLORIDA system, or adherence to the Department's computer "standards". The RFP permitted replacement of existing ODD equipment. The RFP provided that the Department could "reject any and all proposals in the best interest of the Department." On August 8, 1989, Addendum #1 to the RFP was released. A bidder's conference was held on August 14, 1989. On August 16, 1989, Addendum #2 was released. The deadline for submissions gassed on August 30, 1989, with proposals being received from three vendors, Wang, International Business Machines ("IBM"), and Unisys. The Unisys proposal is not at issue in this proceeding The Wang proposal included the Wang VS-5000 computer and the Case Management Disability Determinations System software by the Levy software company. The1 IBM proposal included the IBM AS-400 computer and the Disability Determination System software by the Versa software company. The Department's six-member e1valuation committee included employees of both the ODD and Management Systems. The proposals were reviewed in accordance with procedures developed by personnel who had prepared the RFP. Although the Department asserts that the Wang proposal was nonresponsive to the RFP, the greater weight of the evidence indicates that at least the Wang and IBM proposals were responsive and that the committee properly evaluated the proposals. The RFP required proposals be submitted in two packages; a "technical" package and a "cost" package. On August 30, 1989, the committee opened and began to review the technical submissions received. Following the technical evaluation of the proposals, the evaluation team ranked the Wang proposal in first place and the IBM proposal in second place. The Wang proposal was judged superior in all technical categories. On September 5, 1989, the committee opened and reviewed the cost proposals received. Wang's proposed price was $225,393.58. IBM's proposed price was $399,924. Pursuant to Chapter 44-800, Florida Administrative Code, the RFP required that the top two vendors demonstrate the communications ability by the transfer of formatted documents to and from the Department's mainframe computer (a Burroughs system). On September 5, 1989, the evaluation committee notified the top two vendors, Wang and IBM, to begin the communications demonstration. The purpose of the requirement, according to the rule, is to establish, "an effective procedure for demonstrating minimal compatibility of all new information resource hardware prior to acquisition." The results of the test are certified by the agency's information resource manager as having met the administrative requirement. The deadline for completion of the test was 2:00 p.m. on September 11, 1989, the date upon which the recommended award of the contract was to be posted.. On September 8, 1989, Mr. Rodgers learned from Peter Digre, another Deputy Secretary for the Department, of concern related to the nature of Management Systems' involvement in the RFP drafting and review process. Mr. Rodgers provided an explanation of the drafting and review process, and identified the Management Systems' participation. Mr. Rodgers also explained the ODD position on various issues addressed during the preparation of the RFP. During this approximate period of time, Ms. Hardy traveled to Miami, where she was hosting a conference of social workers scheduled for September 11- 13, 1989. Although the evidence is unclear as to the purpose of the conference, Ms. Van Dusseldorp, other Department employees, and IBM representatives, were present in Miami for the meeting. In Tallahassee, both Wang and IBM were involved in completing the communications demonstration by the September 11 deadline. Wang had no apparent difficulty in meeting the requirement. However, IBM was apparently unable to perform the required test without connecting an IBM personal computer between the proposed IBM system and the Department's mainframe. IBM's use of the personal computer as described was highly unusual because such was not part of the IBM proposal. The Department had not previously certified a like demonstration as having met the administrative requirement. Joseph Spiccia, the Department official in charge of the office responsible for conducting the certification tests, was at the Miami conference. He was aware of IBM's difficulty in completing the formatted file transfer test. On several occasions, he discussed the matter with his employees who were actually present at the test site in Tallahassee. He also discussed the situation with Ms. Hardy, and with an IBM representative in Miami for the conference. Failure to complete the communications test in an acceptable manner would have resulted in IBM's disqualification. Although no vendor had previously been certified under similar circumstances, Mr. Spiccia determined that the use of the personal computer in the communications test was acceptable. Ms. Hardy agreed, and on September 11, as the Department's information resource manager, signed the certification documents indicating that IBM met the communication requirement. On September 11, 1989, Ms. Hardy and Ms. Van Dusseldorp, both in Miami, discussed the RFP situation and the recommended award to Wang. September 11 was the day scheduled for posting of the recommended award. Ms. Hardy instructed Ms. Van Dusseldorp to delay posting the notice of recommended award. In discussing the matter with Ms. Van Dusseldorp, Ms. Hardy expressed concern about Wang's financial condition, apparently in response to several newspaper articles Ms. Hardy had read, indicating that financial problems had arisen. The RFP had not required submission of corporate financial information. During the conversation with Ms. Van Dusseldorp, Ms. Hardy expressed interest in ownership of the software source code (basic computer instructions). Source code ownership would permit the Department's computer support staff to provide modifications and service to software if such service were unavailable from a vendor. The RFP had not required ownership of the software source code be provided to the Department. Source code had not been a consideration during the development of the RFP. During the conversation with Ms. Van Dusseldorp, Ms. Hardy also expressed concern related to the RFP'S lack of required integration with the FLORIDA system and adherence to the Department's "standards" for computer equipment. Ms. Hardy directed Ms. Van Dusseldorp to gather information, including additional references on Wang. Ms. Van Dusseldorp did so immediately. Ms. Hardy also discussed her concerns with Ms. Pettijohn of the IRC. On September 11, 1989, Ms. Van Dusseldorp requested information from an IBM representative attending the Miami conference. In response, she quickly received an IBM sales memorandum headed, "Are you prepared to rise your DDS operations with a vendor who is going down the tubes?" The IBM document addresses site expansion, source code availability and connectivity. According to the telecopier date on the copy in evidence, the document was apparently prepared as early as September 8 (the date of Mr. Digre's meeting with Mr. Rodgers, and prior to Ms. Hardy's discussion with Ms. Van Dusseldorp). After Ms. Van Dusseldorp expressed surprise at the heading, the IBM representative retrieved the document add tore off the top of the page containing the heading. On September 11, 1989, Ms. Van Dusseldorp contacted one of her employees in Tallahassee, and instructed him to draft a document identifying issues related to accepting the Wang proposal and to withdrawing the RFP. She directed him to include STRADIS documentation, source code ownership and integration with the FLORIDA system. Ms. Van Dusseldorp also directed the employee to schedule oral presentations by Wang and IBM. In response to Ms. Van Dusseldorp's directive, a memorandum was drafted and sent to her by telephone facsimile machine. On September 11, 1989, Ms. Van Dusseldorp also contacted another Department employee attending the Miami conference, and directed that she provide information related to connectivity requirements between the ODD system and the FLORIDA system. On the next day, the employee provided handwritten notes in response to Ms. Van Dusseldorp's request. On September 11, 1989, Ms. Van Dusseldorp was contacted by Mr. Rodgers, who requested authorization to post the notice of recommended award as provided in the RFP. Ms. Van Dusseldorp informed Mr. Rodgers that Management Systems intended to "review the process" and that the notice was not to be posted. By letter of that date, Mr. Rodgers notified the vendors that the posting of the recommended award was being delayed to permit Management Systems "an opportunity to review and approve posting of this award." On September 13, 1989, Ms. Hardy returned from Miami. On either September 14 or 15, Ms. Hardy and Ms. Van Dusseldorp met in Tallahassee to discuss the situation. At that time, they reviewed questions which were be addressed at the oral presentations. Also on September 13 or 14, Ms. Van Dusseldorp received additional materials from IBM representatives in response to her Miami request. Included in the materials were copies of newspaper articles reporting Wang's alleged financial difficulties and materials purported to be advice from a brokerage firm related to investments in Wang. During their Miami discussions, Ms. Hardy had directed Ms. Van Dusseldorp to obtain "supplemental references" on Wang. Ms. Van Dusseldorp contacted only two state offices with Wang equipment, the Executive Office of the Governor and the IRC (Ms. Pettijohn's office). Ms. Van Dusseldorp requested information related to the Wang equipment, but did not ascertain whether the equipment was similar to Wang's ODD proposal. Additionally, by September 18 Ms. Van Dusseldorp had obtained information from a Department employee as to the effect that proceeding under "emergency" purchasing provisions would have on potential bid protests. On September 18, Wang and IBM made separate oral presentations. Although the attendees for each presentation were not clearly identified, employees of both the ODD and Management Systems, as well as an official from the SSA, attended the presentations. At the IBM oral presentation, the discussion included the cost of expanding the IBM-proposed system to the remaining ODD sites. IBM stated that expansion costs would be the same for each additional site. IBM's original cost proposal multiplied by the remaining sites exceeded the projected project cost as identified in the Department's advance planning document and therefore exceeded SSA-approved funds. There was also discussion related to whether the memory and storage capability of the IBM proposal was excessive. There may have been some discussion related to source code. At the Wang oral presentation, Wang was questioned on the costs of expanding their system. Wang stated the expansion costs would be the same for each additional site. Expansion costs for the Wang system would be within the approved funding. There were questions related to source code. There were no questions addressing Wang's financial condition. Wang was not advised of the supplemental references contacted by Ms. Van Dusseldorp. Immediately after completion of the oral presentation, the SSA official advised Ms. Hardy that the costs of expanding the IBM system would exceed the amount approved by the SSA. Ms. Hardy contacted the IBM representatives and arranged a meeting for the following morning, September 19. On September 18, 1989, presumably following the oral presentations, Ms. Hardy discussed the situation with Secretary Coler and advised that she would recommend withdrawal of the RFP. He concurred in her recommendation during the September 18 conversation. Although the Secretary had verbally concurred, and even though she had the authority to withdraw the RFP without further approval, she sent a memorandum, dated September 19, to Secretary Coler requesting his written concurrence. The memorandum indicates that Secretary Coler initialed the previously verbal concurrence on September 19. Ms. Hardy testified that she received the returned memo on September 28, nine days after the Secretary signed it. In the September 19 memorandum, Ms. Hardy identifies six issues supposedly justifying withdrawal of the RFP. The issues include the failure of the RFP to require "corporate references", to require ownership of the software source code, to address future expansion costs, to "address network analysis/troubleshooting from a sophisticated perspective", to provide for integration with the FLORIDA system, and to require compliance with the Department's hardware and software standards. Ms. Hardy also states that the RFP did not require STRADIS documentation. The RFP did not require "corporate references", apparently meaning financial references. The concern relates only to Wang. There is no evidence that Ms. Hardy had such concerns related to IBM. Much of the information related to Wang's alleged problems came from newspaper articles and from IBM. Wang was not required or permitted to respond to her concern. The RFP did require references related to the specific system sought by the ODD. The vendors provided such references. The evaluation committee contacted the references and factored the references into the evaluation process. The failure of the RFP to require "corporate references" was immaterial. The issue of software source code ownership appears also to be at least partially related to Ms. Hardy's concern about Wang's financial stability. Ms. Hardy believed that the Department's ability to use and modify the source code could be hampered by Wang's alleged problems. Ms. Hardy also stated that source code ownership permitted the department to modify and tailor the software as necessary; however, the greater weight of the evidence indicates that "ownership" of source code is not required to perform such modifications. The RFP required that the Department receive license to use the vendor's proposed software. At oral presentations, questions related to source code were addressed to both IBM and Wang. There is no evidence that the Department would be unable to modify the source code as necessary under the requirements of the RFP. The failure of the RFP to require the "ownership" of software source code be provided to the Department was immaterial. The RFP did not specifically address expansion costs. The ODD personnel drafting the document did not believe it to be necessary to do so, in that funds were available to automate only the Miami office. Nonetheless, the RFP did require that vendors provide specific figures on equipment, service, and software such as to permit acquisition of additional equipment or software. Accordingly, the Department did have ascertained anticipated expansion costs. Further, at both the Wang and the IBM oral presentations, questions were asked and answered related to expansion costs. Both Wang and IBM identified the cost of per site expansion as the same as the single site cost for the Miami office. Ms. Hardy's assertion that the RFP did not provide information related to expansion costs is incorrect. The reference to the RFP's failure to "address network analysis/troubleshooting from a centralized, sophisticated perspective" relates to an IBM product called "Netview", which permits a centralized analysis of computer system malfunctions by a diagnostician at a single, location. Netview is proposed to be eventually installed on the FLORIDA system, but the FLORIDA system itself is not operative at this time and Netview is not installed. The RFP did not address Netview requirements. Testimony indicates that Wang is developing a product to provide compatibility with the Netview tool. At the time of the hearing, the Wang Netview product was not commercially available, but was expected to be marketed in early 1990. Wang was not provided with an opportunity to respond to Ms. Hardy's concern. The failure of the RFP to address network analysis and diagnosis of malfunctions was immaterial. The RFP did not require "integration" with the FLORIDA system. (The term "integration" indicates shared data files, as contrasted with "interface", which indicates that users are able to access information contained in, separate data files.) The RFP required that the proposed system be capable only of communicating with the SSA/NDDS system, an IBM system. The ODD personnel drafting the RFP assumed that alleged federal NDDS case file confidentiality requirements would prohibit "integration" of ODD/SSA files with the FLORIDA system. In September 19 memo, Ms. Hardy states that the requirements of integration have been of recent development resulting from "current FLORIDA needs assessment work sessions." There is no evidence that such "work sessions" occurred. The integration requirements were created in response to a directive from Ms. Van Dusseldorp, by a Department employee attending the Miami conference. Even so, in her June 28 memo to Secretary Coler, she indicates that the RFP's required connection between the ODD system and the NDDS/IBM mainframe computer "should" accommodate eventual connection to the FLORIDA system. At hearing, Ms. Hardy stated that the objective is to have the Department's programs "interface", sodas to permit the computer systems to communicate. There is no evidence indicating that the proposed Wang system would be unable to "interface" with the FLORIDA system. There is no evidence indicating that further integration between the systems is currently proposed, but it is likely that, `if such' was required, it could be achieved. The Wang proposal included the software needed to interface with the IBM system. Wang's own mainframe computer is an IBM computer. The NDDS system with which the ODD system must communicate is an IBM system. Beyond the communications requirements of the RFP, Wang was not provided with an opportunity to address Ms. Hardy's concern. The failure of the RFP to require "total integration with the FLORIDA system" is immaterial. The RFP did not require compliance with the Department's hardware and software "standards". Such "standards" are essentially internal lists of desktop microcomputers and software products which are determined, by the Department's employees responsible for computer operations, to be acceptable, and which are available for purchase at state contract prices. The issue of "standards" was addressed during the drafting of the RFP and the drafters determined it was unnecessary, and would lessen the possibility of receiving competitive proposals. Further, there is evidence that the Department does not establish standards for minicomputers and for terminals, the equipment being sought by the RFP at issue. Although Wang microcomputers were being used in the Miami ODD, Wang's proposal included conversion of the microcomputers to terminals, for which there were no Department standards. Even so, it would hake been difficult to require adherence to "standards" because the Department changed its microcomputer "standards" in August, 1989, during the period of time vendors were formulating responses to the RFP. The failure of the RFP to require adherence to such "standards" was immaterial. Ms. Hardy's statement that the RFP failed to require STRADIS documentation is correct. The RFP (at page 41, section 6.025-H) states that documentation "should use the HRS standard, which is the McDonnell Douglas STRADIS. . ." Addendum #2 to the RFP, states that vendors "must" submit STRADIS documentation, depending on the type of system proposed. With regard to the conflict between the RFP and the subsequent addendum, the evaluation team treated the item as preferred but not required. The minimum STRADIS documentation consists of a "Keyed Entity Relationship (E/R) model plus its associated Level one Data Flow Diagram (DFD)." There are apparently unknown costs related to production of the model and required IBM provided the model and diagram in its proposal. Although Wang provided substantial technical and functional documentation,, Wang did not include the model and diagram, but did include the cost of providing the STRADIS documentation in its cost proposal. The evidence shows that Wang was able to provide the STRADIS documentation at no added cost. The failure of the original RFP to require STRADIS documentation is insignificant and immaterial. In concluding the September 19 memorandum, Ms. Hardy recommended that no award be made. She identifies several reasons for her recommendation which indicate that Ms. Hardy preferred that IBM be awarded the contract. She states that the cost disparity between the low Wang bid and, the higher IBM bid indicated that the expansion costs for the Wang system would be "much higher" and the configuration proposed by Wang would not meet expected performance levels, that supplemental reference checks indicated that other agencies had problems obtaining service and support from Wang, that Wang's financial stability was "in question", that the "development of functional requirements of the FLORIDA system indicate that on-line interfaces and tight linkages with the FLORIDA system will be essential", that "[b]ecause of our plans for centralized network management from the HRS Technology Center, it is important that the IBM solution can run Network (sic)", and that the "recent implementation of the IBM/Versa solution in Tennessee was very successful. " Ms. Hardy's concern about the cost differential was misplaced. At the oral presentation, Wang clearly stated that per-site expansion cost would be no more than the initial installation. The RFP provided substantial fiscal safeguards requiring that acceptable performance levels be achieved during the installation of the system prior to the Department accepting the installation and paying the vendor. There is no evidence supporting her assertion that the difference between the Wang bid and the IBM bid indicate that Wang's expansion costs will be higher than IBM's, or that Wang's performance levels will be unacceptable. As to the "supplemental reference" checks made by Ms. Van Dusseldorp, she contacted only two additional references, one being the Executive Office of the Governor and the other being Ms. Pettijohn. Neither of the two references were substantially negative. Ms. Van Dusseldorp did not contact other offices in the Department utilizing Wang systems. One Department office, the Health Care Cost Containment Board, recently obtained Ms. Hardy's approval to expand their similar Wang system. Further, Wang was provided no opportunity to submit supplemental references or to respond to the two obtained by Ms. Van Dusseldorp. The "supplemental reference" checks made by Ms. Van Dusseldorp are immaterial. There is no evidence that Wang's financial stability was questionable. Ms. Hardy relied on a series of newspaper articles, and on other material provided by IBM, for her information. Despite her concern, she provided Wang no opportunity to respond to the issue. As to the issue of connectability with the FLORIDA system, the greater weight of the evidence does not support Ms. Hardy's assertion. As addressed previously, Ms. Hardy stated, in her June 28 memorandum to the Secretary, that the ODD system should be capable of being connected to the IBM-based FLORIDA system. The evidence shows that the SSA/NDDS system, which the RFP indicated the ODD system was to connect with, is an IBM system. The mainframe computer used by Wang is an IBM system. The Wang system would be capable of communicating with the FLORIDA system at least to the extent the department has actually considered the issue. The failure of the RFP to require "integration" with the FLORIDA system does not indicate that the Wang system is unable to "interface" with the FLORIDA system, if and when such capability is desired. Ms. Hardy's asserts that, "[b]ecause of our plans for centralized network management from the HRS Technology Center, it is important that the IBM solution can run Network (sic)". This statement clearly suggests Ms. Hardy's preference for the IBM system. "Netview" (incorrectly identified as "Network" in the memo) is an IBM tool which permits analysis of computer system malfunctions by a diagnostician located in a centralized office. The RFP did not address Netview requirements. Evidence shows that Wang's system either is or will be Netview-compatible. At this time, the Department's FLORIDA system is not operating Netview. Wang was not provided with an opportunity to respond to Ms. Hardy's concern. The lack of Netview requirements in the RFP is immaterial. Further evidence of Ms. Hardy's preference for the IBM system is her comment, the "recent implementation of the IBM/Versa solution in Tennessee was very successful...." The source of Ms. Hardy's information is a magazine article she obtained while attending the Miami conference attended by IBM representatives. However, IBM's response to the RFP included Tennessee in its required references which were considered by the evaluation committee. The RFP provided that the Department could reject any and all proposals if such action was determined to be in the best interest of the Department. At hearing, Ms. Hardy asserted that her rejection of proposals and withdrawal of the RFP were in the best interest of the Department. The evidence suggests that Ms. Hardy favored the IBM proposal. As previously identified, the rationale for withdrawing the RFP included factors either detrimental to Wang or supportive of the IBM proposal. The greater weight of evidence does not support a finding that withdrawal of the RFP is in the best interest of the state. The rationale for nonaward of the contract and withdrawal of the RFP consists of factors either immaterial, unsupported by evidence, or contrary to fact. The withdrawal of the RFP was arbitrary. In the memo of September 19, Ms. Hardy recommends to Secretary Coler, that an emergency be declared. In part, Ms. Hardy relies on her stated belief that the federal funds would revert if not obligated by a date certain, and also states that "[d]eclaring an emergency does stop any further recourse within the state administrative hearing process. On September 19, 1989, the day Ms. Hardy forwarded her memorandum recommending that the RFP be withdrawn, Ms. Hardy met with employees from ODD and Management Systems, and representatives of IBM. A representative from the SSA also attended. The subject of the meeting was the cost of expanding the proposed IBM system to the remaining ODD sites. Ms. Hardy called the meeting in response to the SSA representative's concern that IBM's expansion costs would exceed proposed funding. At the meeting, a printed document was provided by IBM comparing the proposed Wang and IBM systems, and addressing Netview and source code issues. Additionally, a handwritten document was circulated which indicated that the per site expansion software costs for the IBM proposal could be significantly lower than the initial installation, and that an expanded ,system could be achieved within the SSA-approved funds. There were no Wang representatives notified of or present at the September 19 meeting. No official notice of the proposed withdrawal of the RFP had been provided to any vendor. On September 20, 1989, a meeting took place in Mr. Rodgers' office, attended by employees of management Systems and representatives of IBM. The purpose of the meeting was to establish specific pricing for the acquisition of the IBM system for the Miami ODD office. The framework for the discussion was the price proposal submitted the previous day by IBM. The Department's plan was to purchase some of the equipment through the state's negotiated price contract program. The remainder of the equipment would be acquired through "emergency purchase" provisions. There were no Wang representatives notified of or present at the September 20 meeting. No official notice of the proposed withdrawal of the RFP had been provided to any vendor. On September 22, 1989, Mr. Rodgers mat with IBM representatives to review the vendor's written proposal related to the discussion of September 20. Questions were raised during the meeting, and on September 25, the participants met again, at which time IBM presented the final version of the proposal. The proposed system included equipment and software substantially similar to the proposal submitted by IBM in response to the RFP. There were no Wang representatives notified of or present at either the September 22 or 25 meetings. No official notice of the proposed withdrawal of the RFP had been provided to any vendor. As previously stated, Ms. Hardy recommends in the memo of September 19 to Secretary Coler, that an emergency be declared based upon the alleged reversion of funds and on the belief that such would prevent an administrative challenge to the action. At some time after the memo had bean forwarded to the Secretary, Mr. Rodgers prepared a written statement offering further support for the declaration of emergency, including increased case loads and personnel reductions. Although the additional materials were subsequently attached to the memorandum, they were not included as of the date the memo was forwarded to the Secretary. On October 16, 1989, the Secretary signed the emergency certification form, completion of which is required by the Department of General Services prior to emergency acquisitions. The certification included the additional Rodgers materials. According to Rule 13A-1.001(14) Florida Administrative Code, an emergency purchase is "...a purchase necessitated by a sudden unexpected turn of events (e.g. acts of God, riot, fires, floods, accidents or any circumstances or cause beyond the control of the agency in the normal conduct of its business) where the delay incident in competitive bidding would be detrimental to the interests of the State." The evidence does not establish that the "emergency" in this case is related to a sudden unexpected turn of events. The evidence does not establish that funds would indeed revert back to the federal government if not obligated by a date certain. Although Department witnesses testified that the federal funds were required to have been obligated not later than September 30 or such funds would revert to the federal government, the evidence does not establish what was required to encumber the funds. There is no evidence indicating that the Department has sought information from the SSA related to action required to obligate such funds. Even if the evidence established that such funds would revert to the federal government, such is clearly not due to a sudden unexpected turn of events sufficient to qualify for purchase under an emergency situation. The Department also suggests chat settlement of legal action against the Department (unrelated to this case) will result in a substantial increase in the number of medically needy determinations which must be made. The legal action was resolved prior to the release of the RFP. Again, the situation is not due to a sudden unexpected turn of events sufficient to qualify for purchase under an emergency situation. The greater weight of evidence establishes that the declaration of emergency was part of a plan to acquire an IBM system for the Miami ODD. On September 26, 1989, Ms. Hardy signed an information resource request authorizing acquisition of the IBM system. Two purchase orders were prepared identifying the computer equipment available on state contract. Two emergency purchase orders were prepared to acquire the remaining equipment which was not available under the state contract. No official notification of the withdrawal of the RFP had been made. Between September 19 and 27, Mr. Rodgers requested authorization to release notice of the withdrawal the RFP several times. Apparently pursuant to Ms. Hardy's instructions, Ms. Van Dusseldorp did not authorize release. On September 28, 1989, Ms. Hardy authorized release of a letter, dated September 27, 1989, informing the vendors that the RFP had been withdrawn. The letters were sent certified mail on September 28, 1989. At least in part, the purpose for Ms. Hardy's delay in providing notification of the withdrawal of the RFP to the appropriate vendors was her belief that the RFP withdrawal and emergency purchase could prevent an administrative challenge to Management Systems' acquisition plan. Ms. Hardy admitted that she believed, pursuant to information obtained from within the Department, that withdrawal of the RFP and subsequent declaration of emergency prohibited administrative challenge. Ms. Hardy desired to eliminate the possibility that an administrative challenge would delay the planned IBM acquisition. The effect of the delay was to permit the Department to negotiate the purchase of the IBM/Versa system without the other vendors learning of the Department's action prior to execution of the contracts and emergency purchase orders. The Department asserts that the rejection of all bids and withdrawal of the RFP, was an act separate and apart from the declaration of emergency and subsequent negotiations with IBM. The evidence does not support the assertion. The reason for the September 19 meeting between representatives of IBM, the Department, and the SSA was to discuss expansion costs of the IBM system and the related concern expressed by the representative of the SSA to Ms. Hardy (after the oral presentations of September 18), that the IBM proposal would exceed available funds if the Miami costs were multiplied by the remaining sites. IBM arrived at the meeting prepared to establish a reduced price for the expansion sites. The IBM proposal which served as a basis for the discussion was the IBM proposal submitted in response to the RFP. The IBM emergency purchase proposal included substantially the same equipment and software as that included in the RFP proposal. Page 22 of the RFP, at paragraph 4.020, entitled "Cost Discussions", in relevant part states, "Any discussion by the bidder with any employee or authorized representative of the Department involving cost information, occurring prior to posting of Bid results, will result in rejection of said bidder's proposal." The weight of the evidence indicates that the discussions between IBM and the Department prior to the release of the RFP withdrawal notice, are violative of this paragraph. The evidence establishes that the RFP would have provided an acceptable system, that Wang and IBM proposals were responsive to the RFP, and that the proposals were appropriately evaluated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order awarding the contract #RFP-89-RR-1 to the Petitioner. DONE and RECOMMENDED this day February, 1990, in Tallahassee, Florida. WILLIAM E. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5488BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 3. Rejected, argument, not appropriate finding of fact. 6. Rejected, immaterial. The statement that "comments from Deputy Secretary Hardy and others were sent to the development team" is rejected, not supported by greater weight of the evidence. Cited evidence does not support finding that Ms. Hardy provided comments to the development team. Greater weight of the evidence indicates that comments came from others involved in RFP preparation, not from Ms. Hardy, whose role during the RFP development process was, at best, minimal. The identification of issues addressed in Ms. Hardy's memo misstates the context within the memo and as related to issues at hearing, rejected, not supported by greater weight of evidence. 37. Rejected, irrelevant. 53. Rejected, as related to September 25 contract which does not require transfer of source code ownership. The fact that the IBM contract does not provide for source of ownership is indicative of Ms. Hardy's lack of concern related to IBM's financial stability. 58. Rejected, irrelevant. IBM likely did not include Netview in the RFP proposal because the RFP did not require such. 59-60. Rejected, irrelevant, RFP did not address connectivity issues. As to "Netview Gateway," rejected, not supported by evidence, testimony indicated that the product was not commercially available at time of hearing. 74. Rejected, not supported by evidence. 82-84. Rejected, irrelevant. Wang's alleged financial problems, not supported by evidence. Rejected, cumulative. Rejected, greater weight of evidence does not establish that Wang/Netview product is commercially available. Rejected, fourth and fifth sentences, argument, not appropriate finding of fact. 97. Rejected, unnecessary. 102. Rejected, unnecessary. 103, 105-113. Rejected, cumulative. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 3. The assertion that the advance planning document should have been submitted to Management Systems for approval is rejected, not supported by greater weight of evidence. The evidence indicates that, at the time the document was submitted to the SSA, no such requirement existed. 9. Rejected, not supported by evidence. Statutory citation states that Deputy Secretary is "responsible for automated information systems". The statute does not specify that such responsibility includes approval of systems. 11-12. Rejected, not supported by evidence. Characterization of RFP as "defective" rejected, unnecessary. Rejected, not supported by evidence. Accepted as to the fact that such articles were read, but rejected as to whether such articles established that Wang was financially troubled, not supported by evidence. Rejected. Greater weight of evidence does not establish that delay in notification was related to agency policy. 32B. Rejected, characterization "major concerns" not supported by greater weight of the evidence. 33-37. Rejected. No evidence to permit conclusion related to Wang's financial status. The fact that Wang was never asked for information related to financial status does not support alleged concern. The fact that articles came from Wall Street Journal, irrelevant. 40. Rejected, immaterial. 43-45. Rejected, not supported by greater weight of evidence. Factors identified as support for emergency purchase existed prior to publication of the RFP. The greater weight of evidence suggests that emergency purchase action was primarily to permit acquisition of IBM equipment. Rejected, irrelevant. Rejected, not supported by greater weight of evidence. Factor identified as support for emergency purchase existed prior to publication of the RFP. The greater weight of evidence suggests that emergency purchase action was primarily to permit acquisition of IBM equipment. 49-50. Rejected, immaterial. Intervenor The Intervenor' s proposed findings of fact are accepted as modified in the Recommended Order except as follows: 2. The reference to expiration of funding is rejected, not supported by the evidence. 5-15. Rejected as to indicating Wang proposal was nonresponsive, not supported by greater weight of evidence. Actions by the Department do not indicate that at any time prior to Wang's filing of the protest was Wang determined to be nonresponsive to the RFP. In fact, had Wang been viewed as nonresponsive, the Department could have simply disqualified Wang and proceeded to make the award to the second-place bidder, IBM. Instead the Department withdrew the RFP, net because the bids were nonresponsive, but because the RFP was deficient. 21. Accepted as to the time frame within which the RFP was drafted. Rejected as to the alleged deadline, not supported by evidence. 25. Rejected as to Mr. Rodgers' anxiety, immaterial, and as to the alleged deadline, not supported by evidence. 28-30. Rejected, not supported by greater weight of evidence. Actions by the Department do not indicate that at any time prior to Wang's filing of the protest was Wang determined to be nonresponsive to the RFP. In fact, had Wang been viewed as nonresponsive, the Department could have simply disqualified Wang and proceeded to make the award to the second-place bidder, IBM. 36. Rejected, not supported by evidence. Cited testimony was that of an ODD employee who was not involved in oral presentations and had not previously worked on an RFP. 40. Rejected, not supported by the evidence, which indicates that Ms. Hardy attended only portions of the oral presentations. Last sentence, rejected, irrelevant. The RFP did not require source code ownership. Last two sentences, rejected, irrelevant. The RFP did not require "Netview" capability. 48. Rejected, not supported by greater weight of evidence. 49-51. Rejected. Suggested loss of finds not supported by evidence. Other factors identified as support for emergency purchase existed prior to publication of the RFP. The greater weight of evidence suggests that emergency purchase action was primarily to permit acquisition of IBM equipment. 52. Rejected. Testimony clearly shows that all discussions between DHRS and IBM to provide system through emergency purchase occurred prior to official notice of withdrawal of RFP to vendors, yet it is unlikely that IBM participated in discussions related to purchasing the Miami ODD system without knowledge that the RFP was not operative. Reference to alleged loss of funds rejected, not supported by evidence. Last two sentences, rejected, irrelevant. COPIES FURNISHED: John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Thomas M. Beason, Esq. Donna Stinson, Esq. Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 John M. Alford, Esq. Holland & Knight Drawer 810 Tallahassee, Florida 32302 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
