Findings Of Fact The Respondent herein, Dennis W. Scott, worked for the Department of Transportation, Bureau of Tolls, from October, 1982, to October, 1986 in various positions at several different toll facilities in the Orlando area. At the time in issue, Respondent was working at the BeeLine East toll facility as a toll collector supervisor. His regular duties included supervision of other collectors and paperwork related thereto. Respondent had been working at that facility for some time and had had, according to his supervisor, Pam Yates, a repeated absenteeism problem. Admittedly, Respondent was, at the time, a cocaine user and missed work periodically because of both his use of cocaine and the rehabilitation treatment he was receiving. When he had to miss work, he would ordinarily take such leave as he had accrued. Ms. Yates felt that he constituted an absenteeism problem, however, and had reached the conclusion that she could not rely on him to be present at any given time. The duty schedules that she prepared were often missed by Respondent and it would be necessary for her to call in part time help to fill in. She could not rely on him. Respondent was scheduled to work Saturday through Monday, October 11- 13, 1986. He did not come to work on those days and, since he had neither sick nor annual leave accrued to cover him, was placed in a leave without pay status since his absence was unauthorized. There is some question as to whether he was told not to report to work on those days. He and his wife both contend that during the period of October 7-11, 1986, Mrs. Yates called his home several times regarding his schedule. On October 10, 1986, according to Mrs. Scott, Mrs. Yates advised her to tell Respondent not to come in for his regularly scheduled work on October 11, 12, and 13, 1986. According to Mrs. Scott, Mrs. Yates indicated that as far as she was concerned, Respondent would be fired but that they had to wait for Mr. Guthrie, the Regional Manager, to come back from vacation to take appropriate action. On Monday, October 13, 1986, Scott contacted Mr. Guthrie by phone and asked him if a decision had been made to relieve him from duty. At this point, according to Mr. Scott, Mr. Guthrie indicated that a decision had been made to terminate him and that he would deliver a letter to that effect to Respondent that afternoon. Though this conversation allegedly took place on October 13, the letter was not dated until October 14, and was not delivered to Respondent until October 17, 1986. Respondent contends that at no time did he intend to resign or abandon his position nor did he ever indicate he did to any of his various supervisors. He contends he did not go to work on October 11-13 because of the phone call received from Mrs. Yates telling him not to come in. At all times during this period, Respondent contends, he was willing and ready to come to work and told Mr. Guthrie this when he spoke with him on the phone. Mrs. Yates tells a somewhat different story regarding the days leading up to the time in issue. Respondent took 2 hours of sick leave on October 7, as well as 6 hours of annual leave. On Wednesday, October 8, she tried to reach Respondent because he had not shown up for work the previous day but calls' to his home were unanswered. He did not report in for duty that day, either, though he called Mrs. Yates at home that night. During that call, he told her that his personal possessions were being repossessed. Respondent was not scheduled to work on Thursday or Friday, October 9 or 10. When Mrs. Yates asked him if he was coming in to work on Saturday, October 11, he hemmed and hawed and finally said, "I guess." At that point she told him she needed to know if he was coming in or not, but he could not definitely say at that time. She did not call him at any time on Thursday or Friday, October 9 or 10, to see if he was coming in on the 11th. Mrs. Yates admits to talking with Respondent's wife on Thursday, October 8th, about some credit cards but not about work. It was during this period that Mr. Berry, Chief of the Bureau of Tolls, called her at home to talk about Respondent's attendance record. He advised Mrs. Yates to go to work on Saturday, October 11, and if Respondent showed up, to send him home. However, Respondent did not come in on October 11, nor did he call to request time off. When Mr. Guthrie, who had been on leave during this period, came back to work, Mrs. Yates discussed Respondent's work record with him but they did not discuss taking action to terminate his employment. They had previously discussed Respondent's lack of reliability, but at no time did she ever indicate that she wanted him fired. At all times when Respondent was absent because of or in treatment for his substance abuse, he was placed on leave for the period of absence. Had Mr. Scott shown up for work on October 11, 1986, he probably would have been fired, but he did not show up. Respondent's absence was not the result of a direction or suggestion from Mrs. Yates but of his own volition and, based on the evidence available, the absence on October 11, 12, and 13 was unauthorized. Respondent is now employed elsewhere though he was unemployed for several weeks after he was notified of his abandonment of position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Dennis W. Scott, be deemed to have abandoned his position with the Department of Transportation. RECOMMENDED this 7th day of October, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4474 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. For the Petitioner None For the Respondent 1. Accepted and Incorporated in FOF 1. 2. Accepted and Incorporated in FOF 2. Accepted and Incorporated in FOF 3. 5. Rejected as contra to the weight of the evidence. 6. Accepted. 7.&8. Accepted and Incorporated in FOF 9. 9. Accepted and Incorporated in FOF 9. 10. Accepted and Incorporated in FOF 5. 11. Accepted and Incorporated in FOF 3. 12.-15. Rejected as contra to the weight of the evidence. 16.&17. Accepted and Incorporated in FOF 5. 18.&19. Rejected as contra to the weight of the evidence. 20. Accepted Irrelevant. Accepted. Irrelevant. COPIES FURNISHED: Charles Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben R. Patterson, Esquire Patterson & Traynham 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32315 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P. E., Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Respondent committed the offenses alleged by the Department of Financial Services in the Administrative Complaint dated May 27, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Financial Services ("Petitioner" or "the Department") has regulatory responsibility for Chapter 626, Florida Statutes (2009), the insurance licensing procedures law. Respondent, Eileen P. Suarez ("Respondent" or "Suarez"), is a licensed general lines agent transacting in property and casualty insurance, under license number E129078. She operated and was the agent in charge of the Suarez Insurance Agency, Inc. ("Agency"), in Hialeah, Florida. The Agency held a valid state license from 7/21/2006 to 7/27/2009. The Department filed a three-count Administrative Complaint against Respondent alleging that she violated various provisions of Chapter 626, Florida Statutes. COUNT I John Vila is the president of Vila Home Group, Inc., a trucking company that is in the business of hauling sand, soil, and gravel. In April 2005, he purchased a dump truck and, at the suggestion of the dealer, contacted Suarez for insurance. Suarez sold Vila two insurance policies, for the period April 29, 2005 to April 29, 2006, one with AequiCap Insurance Company ("AequiCap") and the other with the Underwriters at Lloyds, London ("Lloyds"). The AequiCap Policy was a commercial liability insurance policy. The Lloyds Policy was a commercial automobile physical damage insurance policy. In March 2006, Vila gave Suarez a check in the amount of $10,876.41, made payable to the Agency to renew the AequiCap and Lloyds policies, for the period April 29, 2006 to April 29, 2007. The AequiCap policy quote was approximately $5,350.00. The Lloyds policy quote was approximately $5,500.00. The check was deposited in the Agency's trust account, but the Lloyds policy was allowed to expire on April 29, 2006, and was not renewed until October 26, 2006, creating a six-month gap in commercial automobile physical damage insurance coverage for Vila. When it was renewed, the Lloyds Policy cost $5,712.03. Vila's AequiCap policy expired on April 29, 2006, and was not renewed because Suarez failed to pay MAI Risk Management, AequiCap's managing general agent. The funds were not returned to Vila. While the March 2006 quotes were pending, the registered driver of the truck, Andres Vila, was involved in an accident and was at fault for hitting a wire. Rather than risk an increase in the pending insurance quotes, Vila paid Bellsouth $2,390.36 in damages. COUNT II On or about October 26, 2006, Suarez provided Vila a Certificate of Liability showing that the truck was insured with AequiCap, under policy number TC012695, and with Lloyds, under policy number R641440/0251, for the period April 29, 2006 to April 29, 2007. Vila was not insured under AequiCap policy number TC012695 from April 29, 2006 to April 29, 2007. The Certificate of Liability was a false document that Suarez created on her computer, printed, and gave to Vila. COUNT III Shelly, Middlebrooks & O'Leary, Inc. ("Shelly Middlebrooks") is a licensed insurance agency, located in Jacksonville, that acts as a general agent for multiple insurance companies. Suarez collected insufficient funds to include the premiums that were intended to be forwarded to Shelley Middlebrooks for policies to insure the following trucking companies: All Nations Logistics, LLC (Policy Number 486865); Jose Veiga, d/b/a JJ Freightways (Policy Number 486885); Gary Castle/Diamond Mine (Policy Number 74APN338354); and Nics Oil, Inc. (Policy Number 74APN401617). For each of the four companies, she requested and received binders for insurance from Shelly Middlebrooks, followed by invoices for the premiums that were to have been paid within ten days of the date the invoices were received. In each instance, Suarez did not pay Shelly Middlebrooks, which cancelled the policies for non-payment of the premium. It also obtained a default judgment in the Circuit Court in and for Duval County, Florida, that requires Suarez to pay it the outstanding balances due for the four policies and a $25 insufficient funds check fee, for a total of $8,335.60, which she has been unable to pay. Instead of paying for insurance, Suarez used most of the funds she collected to pay for various other corporate expenses for the same trucking companies, including state and federal government filings for intrastate or interstate travel that were prerequisites to their becoming insurable. Suarez expected to collect the additional funds needed for insurance later, but the clients, the owners of the trucking companies, did not pay her. Suarez admits that she failed her clients in 2006, after her father's death in February 2006. She realized the Vila errors and tried to correct them in October. The Agency is now closed. Suarez's husband has been unemployed for over a year, and their home is in foreclosure. She is receiving social security disability payments and has insufficient funds to file for bankruptcy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Financial Services: Finding Respondent guilty of violating Subsections 626.611(7), (8) and (10); Subsection 626.561(1); and Subsections 626.621(2) and (6), Florida Statutes, as charged in Count I of the Administrative Complaint; Finding Respondent guilty of violating Subsections 626.611(7) and (8); Subsection 626.621(6); and Subsection 626.9541 (1)(e)1., Florida Statutes, as charged in Count II of the Administrative Complaint; Finding Respondent guilty of violating Subsections 626.611(7), (8) and (10); Subsection 626.561(1); and Subsections 626.621(2) and (6), Florida Statutes, as charged in Count III of the Amended Complaint; Revoking Respondent's licenses and appointments issued or granted under or pursuant to the Florida Insurance Code; Ordering Respondent to make restitution to John Vila in the amount of $5,164.38; and Ordering Respondent to make restitution to Shelly Middlebrooks & O'Leary in the amount of $8,335.60. DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of February, 2010.
The Issue The issue to be determined is whether the doctrine of equitable tolling should excuse the late filing of a Petition for Administrative Hearing filed with Respondent by Petitioner Florists Mutual Insurance Company.
Findings Of Fact Respondent, the Department, is the state agency charged with resolving disputes over reimbursement for costs of medical services provided to injured workers under workers? compensation law. Petitioner Florists was in a reimbursement dispute with Kendall. The Department issued a Determination that Florists should reimburse Kendall the sum of $100,894.54. Florists received notice of the Reimbursement Dispute Determination on April 8, 2013, via United States Postal Service certified mail. The Reimbursement Dispute Determination included a Notice of Rights advising Florists that a request for an administrative hearing on the Determination had to be received by the Department within 21 days of Florists? receipt of the Determination. It noted in bold print that failure to file a petition within that time period constituted waiver of the right to a hearing. Florists? Initial Petition was sent via certified mail from the Tallahassee office of Petitioner?s counsel located at 1701 Hermitage Boulevard, Suite 103, Tallahassee, Florida, on or about Thursday, April 25, 2013. The filing deadline was the following Monday. The Initial Petition was appropriately addressed to “Julie Jones, CP, FRP, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida.” The Initial Petition was received by the Department on Wednesday, May 1, 2013, at 10:11 a.m. The Department determined that the Initial Petition was untimely, as it was received on the twenty-third day after Florists received notice, making it two days late. Petitioner is a workers? compensation insurance carrier whose substantial interests are affected by Respondent?s Reimbursement Dispute Determination that it must reimburse health care provider Kendall $100,894.54. That determination will become final if Petitioner is determined to have waived its right to a hearing. The distance between the Tallahassee office of Petitioner?s counsel and the office of the Department is approximately four miles. From review of the United States Postal Service tracking information, it appears that after the Initial Petition was mailed, it was processed in Louisville, Kentucky, before it returned to Tallahassee, Florida, for delivery, indicating a journey of some 1,050 miles over the course of six days. Late delivery of the Petition by the United States Postal Service did not prevent Florists from asserting its rights.
The Issue The issues presented concern the request by Petitioner for a refund of $700 paid to the Florida Public Service Commission as a filing fee related to an application for a rate increase of its passenger fares.
Findings Of Fact The facts presented are based upon a stipulation offered by the parties. Those facts were accepted for purposes of this Recommended Order by the interlocutory Order of November 21, 1983. In keeping with that action and pursuant to the parties' stipulation of facts, the following facts are found: (See Stipulation of Facts and all exhibits attached to this Recommended Order.)
The Issue Whether Petitioner is entitled to file a Petition for hearing to challenge the Stop-Work Order (SWO) and Amended Order of Penalty Assessment (AOPA) more than 21 days from the date of the SWO and the AOPA?
Findings Of Fact Based on the evidence presented at the final hearing, the following findings of fact are made: Respondent is the state agency charged with the responsibility of enforcing the requirement that employers, in Florida, secure workers' compensation insurance coverage for their employees. § 440.107 (3) Fla. Stat. (2005).1 Petitioner, J and A Framing, Inc., during all times relevant to these proceedings, is a Florida for profit corporation, and is authorized to do business in this state. On October 20, 2005, Respondent's Investigator personally served a Request for Production of Business Records on a representative of Petitioner. On October 26, 2005, Respondent's Investigator personally served a SWO on Jorge Bernales, President of Petitioner. The SWO contained a Notice of Rights, on the second page, advising Petitioner, in bold print, that it had 21 days within which it may file a petition challenging the SWO. On October 31, 2005, Respondent's Investigator personally served an Amended Order of Penalty Assessment (AOPA) on Jorge Bernales, President of Petitioner, which also contained a Notice of Rights, on the second page, advising Petitioner, in bold print, that it had 21 days within which to file a petition challenging the AOPA. Marisol Hernandez, Bernales' girlfriend, who reads and speaks English fluently, was present when Respondent's Investigator served Bernales with the SWO and the AOPA. Petitioner filed its Petition with Respondent on March 6, 2006, which is more than 120 days from the date of the SWO and AOPA. Jorge Bernales testified that he was Petitioner's only corporate officer. Marisol Hernandez stated her only relationship with Petitioner was as the girlfriend of Jorge Bernales, its President, and that she is carrying Bernales' unborn child, and his income pays her rent and utilities. She was not employed by Petitioner. Counsel for Petitioner elicited testimony from Hernandez that she did "nothing" for the company and was not an employee or officer of Petitioner. The testimony of Bernales and Hernandez conflicts with the corporate records, admitted in evidence as a joint exhibit, and filed with the Florida Secretary of State, Division of Corporations. The accuracy of the corporate records has not been challenged. It is found that, the corporate records are more credible than the testimony of Bernales and Hernandez. Effective October 27, 2005, Hernandez was listed as the Vice President and therefore, was an employee of Petitioner. At all times material hereto, Bernales was the President and an employee of Petitioner. Petitioner's President and Vice President (collectively, "Officers") met with the Respondent's Investigator on several occasions. During their first meeting, Respondent served the Request for Production of Business Records (BRR) on Bernales. During Petitioner's second meeting with Respondent, Bernales and Hernandez were presented and received the SWO. Hernandez was able to read the Notice of Rights on the SWO, and did so at the final hearing when she read aloud, "[f]ailure to file a petition within 21 days of receipt of this Stop-Work Order constitutes a waiver of your right to request a hearing." During Petitioner's third meeting, the Officers received the AOPA. The Officers had every opportunity to read the AOPA, which contains a bold Notice of Rights, virtually identical to the one on the SWO. Bernales concentrated on raising enough money to pay the penalty. Bernales approached several banks, friends, and family members to get enough money in order to put a ten percent down payment on the assessment. Unable to secure sufficient funds, Bernales offered to pay Respondent a lesser amount in exchange for lifting the SWO. This request was denied. Bernales could understand and speak the English language, but was unable to read English. He knew and was present when Hernandez read and spoke English. Bernales did not seek Hernandez's assistance in understanding the SWO or the AOPA. Hernandez had actual possession of the SWO and the AOPA, but chose to read neither. The Officers went to Elisa Barron, Petitioner's accountant, to gather documents responsive to BRR. Both knew she could read and write English. Barron assisted Petitioner in collecting the documents requested on the BRR. Neither Officer asked Barron to assist them in understanding the terms of the SWO or the AOPA. Furthermore, the Officers had the SWO and AOPA with them, but did not show the SWO or the AOPA to Barron while they were at Barron's office. The Officers testified they were unable to recall whether Barron advised them to seek an attorney regarding the penalty assessment. However, Barron testified she advised Bernales to seek an attorney listed in the local Spanish language newspaper. Barron gave Bernales a copy of the newspaper. Barron's testimony is credible. In January 2006, Bernales retained Dan N. Godfrey, Esquire, to advise the company regarding the instant matter. Even after receiving the advice of counsel, Bernales waited until March 3, 2006, to request permission to file an untimely petition. On March 3, 2006, Petitioner filed a Petition for Hearing with Respondent requesting permission to file an untimely petition to challenge the SWO and AOPA. Petitioner presented no credible evidence that Respondent, or any of its employees, misled Petitioner or lulled it into inaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing the Petition, which requests permission to file an untimely petition challenging the SWO and the AOPA. DONE AND ORDERED this 2nd day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 February, 2007.
The Issue The issue presented is whether the Department's Rule 12B-8.001(5), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
The Issue The issue in this bid protest matter is whether the decision of Respondent, Department of Transportation, to award the contract for the Centralized Customer Service System to Intervenor, Xerox State and Local Solutions, Inc., over Petitioner, Accenture, LLP, was contrary to its governing statutes, rules or policies, or the solicitation specifications.
Findings Of Fact The Department is an agency of the State of Florida charged with planning, acquiring, leasing, constructing, maintaining, and operating toll facilities and cooperating with and assisting local governments in the development of a statewide transportation system. §§ 334.044(16)-(22), Fla. Stat. (2015).3/ The Department is authorized to enter contracts and agreements to help fulfill these duties. §§ 20.23(6) and 334.044(7), Fla. Stat. FTE is a legislatively created arm of the Department and is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the Florida Turnpike System. FTE is authorized to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. § 338.2216(1)(b), Fla. Stat. The Department has the express power to employ the procurement methods available to the Department of Management Services under chapter 287, Florida Statutes. § 338.2216(2), Fla. Stat. On November 1, 2013, the Department advertised the ITN, soliciting Proposals from vendors interested in participating in competitive negotiations for the award of a contract to provide a Customer Service System and associated Operations and Maintenance. The Department issued the ITN pursuant to section 287.057, Florida Statutes. The Department did not receive any challenges to the ITN specifications.4/ The Customer Service System is expected to process nearly all electronic toll transactions in Florida. It will be designed to replace not only the FTE's existing customer service center systems (or "back offices"), but the back office operations for the other three local tolling agencies in Florida as well. These local tolling agencies include the Central Florida Expressway (formerly known as the Orlando–Orange County Expressway Authority), the Miami–Dade Expressway Authority, and the Tampa Hillsborough Expressway Authority (collectively the "Local Authorities"). Under the terms of the ITN, the contract will include all systems and services connected with the customer service operations of toll roads and the payment of tolls to the FTE and Local Authorities including: processing and billing of transactions; identification of the registered owners of vehicles; operational and financial reconciliation; comprehensive system reporting; and website, mobile website, mobile app, and interactive voice response. The FTE, which oversees all Department tolling activities in the state, will execute and manage the Customer Service System contract. Through the ITN, the Department will enter a contract directly with the successful vendor. Thereafter, the Department will enter agreements with the Local Authorities to coordinate the joint use of the new tolling system. The initial contract term for the Customer Service System is seven years. Generally, the Department's ITN set forth a solicitation process consisting of two phases. Phase one involved: (a) the prequalification or short-listing of vendors to determine vendors' eligibility to submit Proposals; and (b) following Proposal submissions, the Department's evaluation and ranking of the vendors' Proposals. Phase two of the ITN is the negotiation phase which would culminate in the Department's award of the Customer Service System contract to the vendor that the Department determined would provide the "best value to the state." The ITN, section 2.26, NEGOTIATION PROCESS (as amended by Addendum 8), outlines the specific steps for the Department's solicitation and provides: Once Proposers have been ranked in accordance with Section 2.6.2 Proposal Evaluation, the Department will proceed with negotiations in accordance with the negotiation process described below. Proposers should be cognizant of the fact that the Department reserves the right to finalize negotiations at any time in the process that the Department determines that such election would be in the best interest of the State. Step 1: Follow the evaluation process and rank Proposals as outlined in Section 2.6 Evaluation Process. Step 2: The ranking will be posted, in accordance with the law (see Section 2.27), stating the Department's intent to negotiate and award a contract to the highest ranked Proposer that reaches an acceptable agreement with the Department. Step 3: Once the posting period has ended, the Negotiation Team will undertake negotiations with the first-ranked Proposer until an acceptable Contract is established, or it is determined an acceptable agreement cannot be achieved with such Proposer. If negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract. The Department reserves the option to resume negotiations that were previously suspended. Negotiation sessions are not open to the public and all negotiation sessions will be recorded by the Department. Step 4: The Negotiation Team will write a short plain statement for the procurement file that explains the basis for Proposer selection and how the Proposer's deliverables and price will provide the best value to the state. Step 5: The Department will contract with the selected Proposer. Section 2.27.1 of the ITN, Ranking/Intended Award, provides that "[t]he Ranking/Intended Award will be made to the responsive and responsible Proposer that is determined to be capable of providing the best value and best meet the needs of the Department." Per ITN, sections 2.6 and 2.26, Step 1, the Department created a Technical Review Team and a Selection Committee which evaluated and ranked the Proposals in order of preference based on the vendors' technical approach and capabilities. The Selection Committee ranked Xerox first followed by Petitioner, then Cubic. The Selection Committee based its decision on Xerox's proven experience with other similar and large tolling projects, including some of the country's largest tolling systems. The Selection Committee further explained that, of the three vendors, only Xerox has fully operational tolling systems in the United States, bringing a "'comfort level' that did not exist with [Petitioner] and Cubic."5/ Thereafter, per ITN, section 2.26, Step 2, on April 10, 2014, the Department posted its ranking of vendors with Xerox first, Petitioner second, and Cubic third. The posting also announced the Department's intent to commence "sequential" negotiations. Under this process, the Department would start negotiations with Xerox as the first-ranked vendor. If negotiations with Xerox failed, the Department would then begin negotiations with Petitioner as the second-ranked vendor, and so on down the order of ranking until the Department negotiated an acceptable agreement. Phase one of the solicitation, which involved section 2.26, Steps 1 and 2 above, was the subject of a prior bid protest in DOAH Case No. 14-2322BID before ALJ Linzie F. Bogan (the "First Protest"). Following the Department's ranking of vendors and its notice of intent to initiate negotiations with Xerox on April 10, 2014, Petitioner and Cubic each filed formal bid protests. Following an administrative hearing, ALJ Bogan entered a Recommended Order recommending that Petitioner and Cubic's bid protests be dismissed. The Department issued a Final Order on October 6, 2014, adopting ALJ Bogan's Recommended Order in its entirety. As Petitioner and Cubic protested the Department's decision to enter negotiations with Xerox, and because of the automatic stay provision of section 120.57(3), the Department never commenced the negotiation phase (phase two) of the procurement as detailed in the ITN, section 2.26, Steps 3 and 4. However, once all litigation involving the First Protest concluded in January 2015, the Department continued with the solicitation process for the ITN.6/ The current bid protest proceeding relates only to phase two of the solicitation process, i.e., Steps 3, 4, and 5 above. Therefore, the undersigned specifically reviewed the negotiation phase of the Department's solicitation and the Department's ultimate decision to award the Customer Service System contract to Xerox. The Department initiated the negotiations phase for the ITN on February 9, 2015. The negotiations were conducted by a Negotiation Team appointed by Department Secretary, Jim Boxold, on February 9, 2015, in accordance with the requirements of section 287.057(16). Section 287.057(16)(a) provides that the agency head shall appoint "[a]t least three persons to evaluate Proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought." The Negotiation Team included: Sheree Merting, FTE's Contractual Services Administrator; Tim Garrett, the tolls program manager for HNTB Corporation ("HNTB"), which is a subcontractor for FTE; and John McCarey, of McCarey Consulting, a sub-consultant to FTE general engineering contractor, Atkins North America, Inc. Mr. Garrett was the project manager for the Customer Service System project. Mr. McCarey would serve as the chief negotiator. Ms. Merting is a Florida certified contract negotiator, a Florida certified contract manager, and a Florida certified contract purchasing manager. Ms. Merting has significant procurement experience with the FTE, including prior experience serving on a negotiation team. Mr. Garrett is employed by HNTB, an engineering consulting firm that provides tolling operations consultation to FTE. His full-time assignment for HNTB is as the tolls program manager for the FTE. Mr. Garrett has extensive knowledge of tolling systems and the software technology that the vendors presented in response to the ITN. Mr. Garrett was the project manager for the Customer Service System procurement and, together with Ms. Merting, oversaw the ITN procurement process from its inception. Mr. Garrett was familiar with the technical aspects of the ITN and was aware of the technology required to transfer the current back office system to the Customer Service System. Mr. McCarey has an extensive background in the transportation and tolling business and has participated in numerous contract negotiations for tolling system contracts. Mr. McCarey formerly worked for Lockheed Corporation for approximately 25 years, serving for a time as its chief operations officer who oversaw its transportation and tolling lines of business. Thereafter, he worked for five years for Affiliated Computer Services, Inc. ("ACS"), serving at one point as the chief financial officer for ACS's State and Local Solutions Group, which managed its tolling business. Mr. McCarey departed ACS in 2006. Xerox acquired ACS two years after Mr. McCarey left. The Negotiation Team's task, as stated in the ITN, section 2.26, Step 3, was to undertake negotiations with the first-ranked Proposer (Xerox) until it established an acceptable contract. If the Negotiation Team did not reach an acceptable agreement with the first-ranked Proposer, the Negotiation Team was to begin negotiations with the second-ranked Proposer (Petitioner), and so on until it achieved an acceptable contract. Once the Negotiation Team agreed with a Proposer on an acceptable contract, per the ITN, section 2.26, Step 4, it was to make a recommendation to the Department explaining how that Proposer would be the "best value to the state." The Negotiation Team was not to reevaluate the vendor Proposals or rankings previously conducted by the Technical Review Team and Selection Committee. Rather, the Negotiation Team was tasked to negotiate a contract with the first-ranked Proposer as listed on the Selection Committee's ranking and continue the process of determining the "best value to the state." The Negotiation Team members were aware that the Technical Review Team and Selection Committee considered the ITN, section 2.5.2, "Best Value Selection" criteria when they evaluated and ranked Proposals. The ITN, section 2.5.2 provides: The Department intends to contract with the responsive and responsible short-listed Proposer whose Proposal is determined to provide the best value to the Department. "Best value," as defined in Section 287.012(4), F.S., means the highest overall value to the state, based on objective factors that include but are not limited to: Company history Project experience and qualifications Proposed Project approach to the technical requirements Proposed approach to the Project plan and implementation Proposed approach to System Maintenance Proposed approach to Operations and performance Price Because the Technical Review Team and the Selection Committee had already evaluated each Proposal under the ITN selection criteria, the Negotiation Team did not revisit each technical issue listed in the ITN, section 2.5.2. The Negotiation Team's purpose was to negotiate with the vendor the Selection Committee ranked first. Nevertheless, the Negotiation Team members attended the vendors' oral presentations during the rankings phase of the procurement. They also reviewed the Technical Review Team's written evaluation summaries, as well as the vendors' Proposals. The Negotiation Team also considered Xerox's prior relevant experience in similar projects as required by section 287.057(1)(c)3. The ITN, section 2.24.2, Technical Proposal Section 9, required vendors, in their technical Proposals, to identify any exceptions and assumptions. "Exceptions" pertained to any and all exceptions Proposers had to the ITN terms and conditions. "Assumptions" related to any assumptions vendors' relied upon to develop their proposed contract price. Section 2.24.2, Technical Proposal Section 9, explained that the Department was not obligated to accept any vendors' exceptions and that the Department would consider any exceptions during the evaluation process at the Department's sole discretion. Section 2.24.2, Technical Proposal Section 9, provides: Technical Proposal Section 9: Exceptions and Assumptions If Proposers take exception to Contract terms and conditions, such exceptions must be specified, detailed and submitted under this Proposal section in a separate, signed certification. The Department is under no obligation to accept the exceptions to the stated Contract terms and conditions. Proposers shall not identify any exceptions in the Price Proposal. All exceptions should be noted in the certification provided for in Proposal Section 9. Proposers shall not include any assumptions in their Price Proposals. Any assumptions should be identified and documented in this Section 9 of the Proposal. Any assumptions included in the Price Proposals will not be considered by the Department as a part of the Proposal and will not be evaluated or included in any Contract between the Department and the Proposer, should the Proposer be selected to perform the Work. Failure to take exception in the manner set forth above shall be deemed a waiver of any objection. Exceptions may be considered during the Proposal evaluation process at the sole discretion of the Department. As allowed by the ITN, section 2.24.2, all vendors included a detailed listing of exceptions and assumptions in their Proposals. The Department intended to address the exceptions and assumptions during the negotiation phase of the procurement process. From the Negotiation Team's perspective, if the Negotiation Team resolved Xerox's exceptions and assumptions favorably to the Department, received acceptable answers to any questions regarding Xerox's Proposal, and obtained a price reduction, then the Negotiation Team would have achieved a contract that represented the "best value to the state." To accomplish its task, Mr. Garrett developed a comprehensive list of topics to guide the negotiations. From a practical standpoint, Mr. Garrett's list became the agenda for the Negotiation Team's first negotiation meeting with Xerox. The list addressed all of the exceptions and assumptions Xerox included in its Proposal, as well as the Negotiation Team's questions about Xerox's Proposal. On February 10, 2015, the Negotiation Team initiated negotiations with Xerox as the first-ranked Proposer. The negotiation sessions, some lasting multiple days, occurred in February, March, April, and May of 2015, and entailed approximately 80 hours of meetings. These meetings included face-to-face engagements between the Negotiation Team and Xerox, as well as internal strategy meetings between the Negotiation Team members where Xerox was not present. Negotiation meetings also were periodically attended by various personnel from the Local Authorities and HNTB who provided input to the Negotiation Team throughout the process. During these meetings, the Negotiation Team discussed negotiation points and reviewed information gathered from Xerox. During the negotiation meetings with Xerox, the Negotiation Team addressed each exception and assumption Xerox submitted with its Proposal. The Negotiation Team rejected most of Xerox's exceptions. However, the Negotiation Team did agree to certain exceptions that it believed would benefit the Department or improve the Customer Service System. These benefits included (1) the tolling system's potential inter- operability with other states' tolling systems, (2) a clause requiring at least 120 days' notice to exercise the contract renewal option, (3) the Department's access to Xerox's software source code to increase the Department's ability to operate and modify the system should Xerox cease to serve as the contracted vendor, and (4) limiting the use of interactive voice response ("IVR") technology to only customer service and not for user account set-up due to the frequency of errors associated with IVR usage. No evidence shows that the exceptions and assumptions the Negotiation Team accepted were detrimental to the Department. Neither did any evidence indicate that the exceptions the Negotiation Team approved would negatively impact the operational performance of the tolling system or increase the cost or risk to the Department. The Negotiation Team and Xerox also reviewed "in excruciating detail" every Department question about Xerox's Proposal. At the final hearing, Mr. McCarey recounted that the Negotiation Team wanted to ensure that "the record was clear as to what Xerox was actually going to provide as a result of their Proposal." By the conclusion of its negotiations, the Negotiation Team had thoroughly negotiated the exceptions and assumptions with Xerox and clarified all questions it had about Xerox's Proposal. In addition to favorably resolving all issues related to Xerox's exceptions and assumptions, the Negotiation Team obtained a significant price reduction from Xerox. At the Negotiation Team's insistence, Xerox agreed to reduce the price of its Proposal by over $20 million (roughly 3.5 percent). The Negotiation Team considered this price reduction a "big deal." The Department did not make any concessions to Xerox in negotiating the exceptions or assumptions. The Department was going to pay less for the Customer Service System contract and receive the same services from Xerox. Also during the negotiations, the Negotiation Team scrutinized Xerox's performance on two of its existing customer service system contracts. The first contract was Xerox's back office system for the SunRail commuter rail system operating in the Department's District 5 in the Orlando area. Prior to negotiations, Negotiation Team members became aware that the Xerox SunRail system was experiencing problems. Therefore, to address any concerns that these issues might manifest in Xerox's performance on the Customer Service System contract, the Negotiation Team required the Xerox personnel responsible for the SunRail system to attend the first negotiation session. The Negotiation Team directed Xerox to provide an overview of the SunRail difficulties and discuss how Xerox was addressing those issues. During the course of the negotiations, the Negotiation Team determined that Xerox's SunRail "transit" system was significantly different from its proposed FTE "tolling" system. The Negotiation Team learned that the SunRail system's account management and back office operations materially differed from the back office system Xerox planned to implement for the Customer Service System contract. SunRail is a transactional or card-based system. SunRail customers (commuters) purchase tickets ("fare media") from ticket vending machines for use on a transit (train) transportation system. The SunRail back office processes money stored by commuters on fare media. By contrast, the Customer Service System contract involves a "tolling" system for motor vehicles. In a tolling system, customers use electronic transponders, such as a SunPass or E-Pass transponder, mounted in or on their vehicle as they drive through a tolling plaza. The Customer Service System would also include a video transaction component where a photo or video might be taken of a vehicle license plate as it passes through the tolling plaza. The license plate information is processed by the back office to determine whether the driver's prepaid account may be charged for the transaction. If no customer account is associated with the vehicle tag, the driver is sent an invoice. The Negotiation Team discovered that the SunRail back office customer service problems primarily involved the operation of SunRail ticket vending machines. Ticket vending machines would not be used in the Customer Service System motor vehicle tolling operations. The Negotiation Team further ascertained that the Xerox business unit that would run the Customer Service System tolling system is a separate, independent business unit from the Xerox division that operates the SunRail transit system. The two business units would employ different personnel, different management teams, different reporting processes, and different technology. Moreover, the Negotiation Team determined that the technology Xerox used to operate the SunRail transit system is "very new" technology. Conversely, the account management product Xerox intends to use for the Customer Service System contract is its VECTOR 4G tolling technology. The VECTOR 4G system is a well-established product in the toll collection industry. The VECTOR 4G system is used by multiple state agencies and in some of the largest toll collection systems in the United States, including New York, New Jersey, California, and Texas. Fundamentally, the VECTOR 4G back office system tracks customer prepaid accounts from which money is withdrawn and replenished for transactions being processed. Xerox's longstanding operation of VECTOR 4G-based systems, as well as its status as one of the largest providers of back office electronic tolling systems in the United States, became a key factor in the Negotiation Team's ultimate determination that Xerox's Proposal provides the "best value to the state." Nonetheless, to alleviate any Department concerns and provide additional incentive for Xerox to perform as expected on the Customer Service System contract, the Negotiation Team took advantage of the negotiation process to strengthen the Department's position on the SunRail contract. The Negotiation Team demanded Xerox agree to a "cross-default" provision that would allow the Department to default Xerox and terminate the Customer Service System contract if Xerox defaulted on its responsibilities on the SunRail contract. The Negotiation Team believed the cross-default provision would pressure Xerox to ensure that it performed its duties under the smaller SunRail contract, as well as provide added protection on the Customer Service System contract. Although initially resistant, Xerox ultimately agreed to the addition of a cross-default provision to the Customer Service System contract. The second Xerox contract the Negotiation Team reviewed was a similar tolling system Xerox currently operates for the Texas Department of Transportation ("TxDOT"). The Negotiation Team followed up on reports it received regarding problems TxDOT was experiencing with its Xerox tolling system. The Negotiation Team learned that the TxDOT issues primarily concerned data migration from prior tolling system accounts. These issues, however, did not arise from Xerox's system. They primarily resulted from TxDOT's specific instruction to Xerox to collect outstanding tolling fees and fines that were two years old and had never been processed or invoiced by the previous vendor. In addition, the Negotiation Team learned that the issues with the TxDOT databases resulted from the use of duplicate accounts and database sources that were much larger than what Xerox would experience with the FTE. Following its review, the Negotiation Team was satisfied with Xerox's approach to data migration for the FTE and was not concerned that Xerox's issues with TxDOT would impact Xerox's management and operation of the Customer Service System contract. Ultimately, after considering all the problems Xerox experienced managing the SunRail and TxDOT contracts, the Negotiation Team concluded that any performance issues on the SunRail and TxDOT systems would not negatively impact or occur with the Customer Service System contract. Thereafter, the Negotiation Team concluded that Xerox could successfully implement and perform the toll collection system it proposed in response to the ITN. At the conclusion of negotiations with Xerox, the Negotiation Team members were confident that Xerox could deliver the toll collection system it proposed. All three Negotiation Team members agreed that the two sides had resolved all outstanding exceptions and assumptions, as well as questions regarding Xerox's Proposal. Further, the Negotiation Team reconciled to their satisfaction any lingering concerns about the SunRail and TxDOT tolling contracts. The Negotiation Team members were also very pleased with Xerox's $20 million contract price reduction.7/ Accordingly, the Negotiation Team believed that it had achieved an acceptable agreement with Xerox that was beneficial to the Department and consistent with the ITN. Therefore, the Negotiation Team made a final determination that Xerox provided the "best value to the state" and should be awarded the Customer Service System contract. In accordance with the ITN's "sequential" negotiation process detailed in ITN, section 2.26, step 3, the Negotiation Team only negotiated with Xerox, the first-ranked vendor. Once the Negotiation Team believed that it had established an acceptable contract with Xerox, it never initiated negotiations with Petitioner, the second-ranked vendor. Consequently, Petitioner was never provided the opportunity that Xerox received during the negotiation process to address any issues related to its exceptions and assumptions, answer any questions about its Proposal, or reduce its Proposal price. Upon negotiating an acceptable contract with Xerox, Mr. McCarey, with input from the other Negotiation Team members, prepared a written recommendation memorandum (the "Recommendation Memorandum") setting forth the Negotiation Team's recommendation for the Department to award the Customer Service System contact to Xerox. The Recommendation Memorandum, entitled "Recommendation of Negotiation Team to Diane Scaccetti, Executive Director of the FTE," included background information on the negotiation, a summary of the negotiation, a review of the Negotiation Team's objectives and strategy, and the basis for its recommendation of Xerox. The Recommendation Memorandum cited to several key factors, including Xerox's prior relevant experience in operating high-volume toll service centers, as well as the approximately $20 million contract price reduction. Mr. McCarey summed up the Recommendation Memorandum by writing: Recommendation As a result of the actions of the Technical Review committee, the selection committee, and the negotiations as noted previously, as well as, all of the recorded meetings, the negotiating team believes it is in the best interest of the state to contract with Xerox for the [Customer Service System] contract, as providing the best value resulting from the ITN process. Xerox's experience in operating high volume toll service centers and the negotiating team's negotiated price reduction, were key factors in arriving at the negotiating team's recommendation. Mr. McCarey concluded the Recommendation Memorandum with one additional recommendation that the Department establish a "peer review contract." Mr. McCarey wrote that: the team would also like to see the Turnpike engage an outside party, knowledgeable in large systems development and possessing toll industry experience to do a peer review of the Proposal, contract, schedule, etc to ensure the Turnpike has identified all risks, and recommend any improvements that may improve the success of the project moving forward. Recognizing that this ITN procurement involved the largest back office system in the United States for tolling, the Negotiation Team believed that it would be prudent for the Department to consider obtaining additional oversight to ensure that no issues or risks were overlooked during the procurement process. The ITN did not require a peer review contract. The Negotiation Team considered this recommendation independent and separate from its official recommendation to award the contract to Xerox as the "best value." The peer review recommendation was not based on the Negotiation Team's concern over whether Xerox could perform the Customer Service System contract. The Negotiation Team felt the Department could choose to implement, or not implement, a peer review as it so determined. On June 2, 2015, the Department scheduled a public meeting to announce its notice of intent to award the Customer Service System contract. At that meeting, Mr. McCarey read the Recommendation Memorandum aloud to Ms. Scaccetti, who was present for the meeting. Ms. Scaccetti, in her capacity as FTE Executive Director, was delegated the general authority from the Secretary of the Department to award and execute contracts issued by the Department. As explained in the Recommended Memorandum, the Negotiation Team recommended that the Department award the Customer Service System contract to Xerox as the best value proposer. After Mr. McCarey read the Recommendation Memorandum, Ms. Scaccetti asked each Negotiation Team member if they concurred with the recommendation. Each member confirmed that they did. With that, Ms. Scaccetti accepted the recommendation to award the Customer Service System contract to Xerox as the best value proposer to the state. Ms. Scaccetti was satisfied that the Negotiation Team had performed its job under the ITN, and she endorsed the Negotiation Team's recommendation that Xerox provided the "best value to the state." Ms. Scaccetti also accepted the Negotiation Team's additional recommendation for a separate peer review contract. The Negotiation Team's Recommendation Memorandum was made part of the Department's procurement file. On that same day, the Department publicly posted its notice of intent to award the Customer Service System contract to Xerox. Ms. Merting, as the procurement administrator, was responsible for maintaining the ITN procurement file. Promptly after the June 2, 2015, meeting, Ms. Merting began drafting a "short plain statement" to be placed in the solicitation and contract files prior to the execution of the Customer Service System contract as required by section 287.057(1)(c)(5) and ITN, section 2.26, Step 4. At the time of the final hearing, however, Ms. Merting's short plain statement remained in draft format. Ms. Merting ceased working on her statement after Petitioner filed its notice of intent to protest the Department's intended award to Xerox. Ms. Merting testified that her "short plain statement" would have tracked the language of the Negotiation Team's Recommendation Memorandum and would have explained the basis for selecting Xerox and how Xerox's deliverables and price will provide the best value for the state. Ms. Merting placed her draft statement in the ITN procurement file. Based on the above Findings of Fact, the greater weight of the evidence presented at the final hearing does not establish that the Department's action was clearly erroneous, contrary to competition, or arbitrary, or capricious. Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that the Department's decision to award the Customer Service System contract to Xerox contravened the Department's governing statutes, rules or policies, or the solicitation specifications that apply to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order upholding its determination to award the Customer Service System contract to Intervenor, Xerox, and denying the Petitioner's Petition for bid protest. DONE AND ENTERED this 14th day of October, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 October, 2015.
The Issue The issue is whether Respondent's untimely request for an administrative hearing is excused by the doctrine of equitable tolling.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. To enforce this requirement, the Department performs random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On January 16, 2018, Hemant Balgobin, a Department compliance inspector, conducted a compliance investigation at a job site in Bartow, Florida. The inspection resulted in a determination by Mr. Balgobin that Respondent was the responsible entity supervising the job site, and three individuals employed by Respondent did not have the required workers' compensation coverage. On January 17, 2018, a Stop-Work Order and Request for Production of Business Records was served on Ms. Morales. After the business records produced by Ms. Morales were reviewed by the Department, on May 21, 2018, the Department served her with a Penalty Assessment proposing to assess the company a penalty in the amount of $55,187.12. The Penalty Assessment contained a Notice of Rights, which stated that, if Ms. Morales wished to contest the penalty, she must file a "petition for hearing so that it is received by the Department within twenty-one (21) calendar days of your receipt of this agency action." It also stated that the petition "must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0300." Finally, the Notice of Rights stated in bold capital letters, "FAILURE TO FILE A PETITION WITHIN TWENTY-ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THIS AGENCY ACTION." This meant that a petition had to be filed and in the hands of the Agency Clerk no later than June 11, 2018. The petition was not filed until June 15, 2018. Because the petition was filed four days late, the Department issued an Order to Show Cause, which required Ms. Morales to show cause why her petition should not be dismissed. In her response, Ms. Morales asserted that she did not have a fax number for filing a petition, so she contacted Mr. Balgobin, who told her to fax it to him and "they would fax it to the right person." She essentially contends that this statement led her to believe that by filing the petition with Mr. Balgobin, it would be treated as a timely filing. The Department construed this conversation as possibly excusing the late filing and forwarded the matter to DOAH to resolve that narrow issue. The record shows that on June 14, 2018, or after the filing deadline was missed, Ms. Morales telephoned Mr. Balgobin to ask "who to send it to," as there was no email or fax number in the Notice of Rights. She testified that he told her to fax the petition to the Fort Myers office and it would be forwarded to Tallahassee. After speaking with Mr. Balgobin, she prepared a petition and then faxed it to the Fort Myers office the following day, June 15, 2018. In his testimony, Mr. Balgobin did not say whether he spoke with Ms. Morales on June 14, 2018, or if he told her to fax the petition to him. However, it is reasonable to find that he did, because she faxed a petition to the Fort Myers office on June 15, 2018, and it then was forwarded by that office to Tallahassee. However, all of these events occurred after the deadline for filing a petition. There is no credible evidence that Mr. Balgobin gave Ms. Morales a specific date when the petition was due, and he made no statements that caused her to miss the deadline. In fact, on the few occasions that he spoke with Ms. Morales throughout this process, he always reminded her to read the Notice of Rights. It is not the practice of compliance inspectors (or any other employee in the Fort Myers district office) to tell persons when their petitions must be filed. At hearing, Ms. Morales also contended that one reason for the delay in filing a petition was because the Notice of Rights listed only a street address in Tallahassee, and not a fax number or email address. She explained that she attempted to telephone the Agency Clerk in Tallahassee to secure that information, but was unsuccessful. She gave no explanation as to why the petition was not sent by mail to the Tallahassee address pursuant to the instructions in the Notice of Rights. The undersigned has not credited Ms. Morales' assertion that she was confused on where and how to send a petition, given the clear instructions in the Notice of Rights. Ms. Morales also spoke by telephone with Ms. Almas, a Department regulatory consultant in the Fort Myers office. The record is confusing on the gist of those conversations because Ms. Morales was unclear about when the calls occurred, and whether the calls related to the deadline for filing business records to take advantage of a penalty discount, filing her request for a hearing, or filing a response to the Order to Show Cause. The record is clear, however, that Ms. Almas telephoned Ms. Morales six days after the Stop-Work Order was issued in January 2018 to remind her that all business records must be filed within ten days in order to be eligible for a discount. According to Ms. Almas, a second telephone conversation took place on May 31, 2018, when Ms. Morales contacted her to ask why she did not receive a discount on the penalty. At hearing, Ms. Morales contended that during that call, Ms. Almas provided her with a specific date on which the petition must be filed, and that she timely filed her petition in accordance with those instructions. However, she could not recall the date allegedly given to her by Ms. Almas. Ms. Almas denied giving Ms. Morales a specific due date for the petition and says she only referred her to the Notice of Rights. She also denied providing any misleading information that would cause Ms. Morales to late-file her petition. On this issue, Ms. Almas' testimony is credited. Finally, Ms. Morales acknowledged that she read the Notice of Rights and she understood she had 21 calendar days in which to request a hearing. She admitted that nothing prevented her from filing a petition in a timely manner, but she "was just trying to see how [she] would do it," since this was the first time she was involved in an administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing Respondent's request for a hearing as untimely. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of January, 2019.
Findings Of Fact DOT and its predecessors have been charged by statute with the responsibilities to construct, operate, and maintain the Florida Turnpike, which is known as the Sunshine State Parkway. The Parkway is financed through a system of tolls which DOT charges users, through concessions that DOT receives from service facilities that are located on the Parkway, and from interest that DOT receives on deposits of toll revenues. Tolls are the primary source of revenue. Proposed rules 14-61.01 and 14-61.03 would increase the tolls charged by DOT for all Parkway traffic. The Petitioner is a political subdivision of the State of Florida. The Parkway traverses the north-south length of Broward County. Petitioner is a major user of the Parkway. Petitioner has the responsibility to operate and maintain a system of roadways within its boundaries. Changes in traffic patterns on the Parkway affect traffic patterns on other roads within the County. The parties have stipulated that the Petitioner would be substantially affected by the proposed rules. The first section of the Parkway, between Miami and Ft. Pierce, was completed in 1956. The second section, between Ft. Pierce and Wildwood, was completed in 1963. The toll schedule, which sets the rates charged different classes of vehicles for different movements along the Parkway, has not been amended since it was originally adopted and implemented in connection with the opening of the various segments. The original toll schedule was determined based upon local costs of obtaining property and estimated maintenance costs. The present toll structure includes some sharp fluctuations in the rate per mile charged for different movements. The average rate for the entire Parkway is approximately 1.8 cents per mile. For some movements along the Parkway the rate is as high as 4 cents per mile, while for others the rate is 1.6 cents per mile. Different rates are charged for passenger cars, and for trucks. The rate differentials are based upon the number of axles. Thus a five axle heavy truck pays a rate that is 2.5 times the rate charged passenger cars. During 1977, DOT began to consider a revision of the toll structure. Several legislators had expressed a desire that the toll rates be made uniform for all movements on the Parkway. Furthermore, the amount by which revenues obtained from operation of the Parkway exceed the cost of bond payments and operation and maintenance of the Parkway had been decreasing. It appeared at one time that there would be a shortfall of revenues for the 1977 year. There was also a projected shortfall of revenues for the 1978 year. The shortfalls did not occur. In fact there was a slight excess of revenues in 1977, and new projections based upon experience during the first six months of the year indicate that the same will be true for 1978. Excess revenues are, however, considerably less than had been typical in past years. DOT has developed and proposed what it calls a "minimum capital program". The program is labeled "minimum" because it contemplates making expenditures only for items that are needed, and not for items that are merely desirable. Revenue needs have been estimated through the calendar year 1991. The minimum capital program includes payments that will need to be made on revenue bonds; and the cost of major resurfacings, periodic maintenance, updating communications and tolls equipment, safety improvements, rehabilitation or replacement of concessionaire facilities, improving traffic handling facilities and miscellaneous engineering expenses. In addition to its own engineers, DOT employs two engineering firms to assist it in operating and maintaining the Parkway. A traffic engineer is employed to review the financial status of the Parkway on an annual basis, and a general engineer is employed to review the physical condition of the Parkway. Neither the traffic engineer nor the general engineer have mandated the minimum capital program. This program was developed by DOT's own employees The traffic engineer's projections for revenues that will be obtained from operation of the Parkway through 1991 reveal that inadequate revenues would be raised to finance the minimum capital program. DOT thus employed its traffic engineer on a special project basis to propose a toll schedule that would raise sufficient revenues, and that would eliminate the large variations in rate per mile charged for different movements on the Parkway. The traffic engineer proposed several alternative toll schedules. DOT is seeking to adopt the most conservative schedule proposed by the traffic engineer, through proposed rules 14-61.01 and 14-61.03. The traffic engineer sought to propose a schedule so that tolls for all movements on the Parkway would represent a fixed cost for collection of the toll, plus a fee based on usage in terms of mileage. It was decided that tolls would not be reduced for any movements, and that each movement would have an increase of at least five cents. There would be no toll increases greater than one hundred percent, and the smallest toll for any movement would be at least twenty cents. The tolls for all movements would be in five cent increments, so that change would not need to be distributed in pennies. Overall the toll structure set out in the proposed rules represents approximately a twelve percent increase, with per-mile rates being made more uniform. The ratio of the tolls charged to different vehicles has remained almost constant. Heavy trucks with five axles will now pay tolls that are approximately 2.6 times that charged for passenger vehicles. This slight increase in ratio reflects nothing more than a desire to maintain tolls in five cent increments. It does not reflect any desire to change the increments charged for different types of vehicles. Petitioner asserts that the minimum capital program is overstated, and that considerably less money will be needed for resurfacing and for safety improvements. DOT estimates that $110,000,000 will be needed for resurfacing on the Parkway between 1978 and 1991. This estimate is based upon a projection that resurfacing will be required every eight years, and will cost approximately $85,000 per mile to accomplish. The eight-year cycle is a planning tool utilized by DOT. It reflects the average life of pavement on interstate highways. The Parkway's history reflects that repavings are required less than every eight years. Portions of the first section of the Parkway did not need any resurfacing after the initial work for eleven years. With few exceptions, no new resurfacings were required after the first one, which was completed in 1968, until this year. Thus the first resurfacing has lasted from ten to fourteen years. Perhaps as a result of variances in materials, the experience on the second section of the turnpike has not been as good, but it does appear that a resurfacing will last for more than eight years. Despite this favorable history, there is room for considerable speculation on the part of engineers as to how long fly resurfacing will last. Eight years, while conservative, represents a fair estimate in view of the uncertainty. It was estimated by a witness called by the Petitioner that a resurfacing can be accomplished for approximately $40,000 per mile rather than the $85,000 estimated by the Respondent. The witness who made this estimate has not been involved in any resurfacings of this magnitude since 1968. The major reason for his smaller estimate is that he would use considerably less asphalt than proposed by the Respondent. Here again, there is room for variance in the views of engineer. The amount proposed by the Respondent, while again on the liberal side, appears to be reasonable, and based upon current estimates of costs on actual projects, with inflation being considered. As to safety improvements, Petitioner asserts that the improvements proposed by DOT are not essential. The minimum capital program includes proposals to add guard rails, to increase the strength of some existing guard rails, to improve lighting on the Parkway, and to increase the length of several approach lanes. The economic justification for the proposed safety improvements could be a subject for debate, but it does appear that the improvements offered by DOT are reasonable, and do not constitute as high an expenditure for safety as would be ideal. Projected revenues under the present toll schedule would not be adequate to finance the minimum capital program. The total deficit would amount to either $40,000,000 or $73,000,000 depending upon the accounting method utilized. Under the proposed toll schedule an additional $91,700,000 would be raised over the amount that would be raised from the existing toll schedule according to the traffic engineer's projections. There would thus be at least a $20,000,000 estimated total excess of revenues under the proposed schedule. This $20,000,000 must be considered from the perspective that it represents a thirteen-year projection in a project which will have an aggregate budget of approximately $361,000,000. Heavy trucks cause more wear on a highway surface than do passenger automobiles. The amount of increased wear is even greater than would be reflected by weight differentials. Trucks wear out a road surface at a rate of as much as twenty five times greater than automobiles. DOT made no effort to have the differential in tolls charged to trucks and automobiles reflect the amount of wear caused by each type of vehicle beyond the amount the present rate structure reflects such a differential. Neither did the Respondent make any effort to determine the extent to which toll increases could cause trucks to abandon the Parkway and to utilize other highways. The differential that exists in the present toll schedule was accepted by DOT and used for the purpose of developing a new schedule without any inquiry into whether a different ratio might better serve to raise revenue and to maintain the Parkway. The evidence does not reveal any logical basis for setting a ratio based upon that number of axles on the vehicle, but nonetheless DOT made no inquiry into the appropriateness of that ratio. The Economic Impact Statement prepared in support of the proposed rules was developed in June, 1977. The Statement was completed prior to June 16, 1978, the date that the proposed rules were noticed in the Florida Administrative Weekly. The Economic Impact Statement was submitted into evidence at the hearing. It is organized along the lines of Section 120.54(2), Florida Statutes (1977), with numbered paragraphs in which the data required by the statute is putatively set out. Although there was testimony from a competent and qualified expert witness to the effect that the Economic Impact Statement does not meet professionally acceptable methodology, it has not been established that the Statement is other than adequate to meet the requirements of the statute. The Petitioner's expert testified primarily that the Statement does not include a recitation of the data upon which the conclusions set out in the Statement are based. The expert would have preferred that the proposed rule be quoted in the Statement, and that all figures utilized in the Statement be fully explained. The expert did not find any specific fault with she methodology of obtaining data, with the data itself, or with the conclusions.
The Issue The issue in this case is whether Respondent, Margaret Louise Herget, committed the offenses alleged in an Amended Administrative Complaint issued by Petitioner, the Department of Financial Services, on December 9, 2005, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat.1 Respondent Margaret Louise Herget was, at the times relevant, licensed in Florida as a general lines (property and casualty) insurance agent. Ms. Herget's license number is A117083. At the times relevant to this matter, the Department has had jurisdiction over Ms. Herget's insurance licenses and appointments. At the times relevant to this matter, Ms. Herget was the president and a director of A & M Insurance, Inc. (hereinafter referred to as "A&M"). A&M was incorporated in 1991 and has been operating as an insurance agency in Broward County, Florida. At the times relevant to this matter, A&M had a business bank account with Bank Atlantic of Ft. Lauderdale. Ms. Herget has been an authorized signatory on the account since 1998. At the times relevant to this matter, Ms. Herget maintained a contractual relationship with Citizens Insurance Company (hereinafter referred to as "Citizens"), an insurer. Pursuant to this contractual relationship, all applications and premiums for Citizens's products received by Ms. Herget were to be submitted to Citizens within five business days. Albert Herget. Albert Herget,2 Ms. Herget's husband until their marriage was dissolved in September 2003, also maintained a contractual relationship with Citizens. Mr. Herget, who was licensed as a general lines agent by the Department, was appointed by Citizens to write Citizens' property and casualty insurance. Mr. and Ms. Herget were both authorized signatories on A&M's bank account from 1998 until June 2003. Ms. Herget continued as the sole authorized signatory on the account after June 2003. Mr. Herget was also an officer of A&M until October 6, 2003, when he resigned. A&M was named after "Albert" & "Margaret" Herget. The evidence failed to prove that Mr. Herget was under the direct supervision and control of Ms. Herget. The evidence also failed to prove that Ms. Herget knew or should have known of any act by Mr. Herget in violation of Chapter 626, Florida Statutes. Count I: The Camp Transaction. In June 2002 Michael Camp and Rosemary Mackay-Camp went to A&M to purchase hazard, windstorm, and flood insurance. The Camps met with and discussed their needs with Mr. Herget. On or about June 11, 2002, the Camps paid $2,273.97 by check number 365 made out to "A & M Insurance" for "Flood, Wind & Home Insurance." The premium for the windstorm insurance amounted to $1,026.00. The check was given to Mr. Herget and was deposited in A&M's bank account on or about June 12, 2002. On or about June 11, 2002, the Camps were given a document titled "Evidence of Property Insurance," which indicated that they had purchased insurance on their home for the period June 14, 2002, through June 14, 2003. The windstorm insurance was to be issued by Citizens. Initials purporting to be those of Ms. Herget and a stamp of Ms. Herget's name and insurance license number appear in a box on the Evidence of Property Insurance form titled "Authorized Representative." Ms. Herget testified credibly that the initials were not placed there by her.3 There is also a notation, "Paid in Full Ck # 365" and "Albert," written in Mr. Herget's handwriting on the Evidence of Property of Insurance form. Mr. Herget also gave the Camps the note evidencing the receipt of their payment. The Camps, merchant marines, left the country after paying for the insurance they desired on their home and did not return until sometime in 2003. Upon their return they inquired about why their windstorm insurance had not been renewed and discovered that they had never been issued the windstorm insurance coverage they had paid A&M for in 2002. The Camps attempted several times to contact Ms. Herget by telephone. Their attempts were unsuccessful. They wrote a letter of inquiry to Ms. Herget on October 29, 2003. Ms. Herget did not respond to their inquiry. Having received no response to their inquiry of October 29, 2003, Mr. Camp wrote to Ms. Herget on or about December 5, 2003, and demanded that she either provide proof of the windstorm policy the Camps had paid for or refund the premium paid therefor. By letter dated December 11, 2003, Ms. Herget informed Mr. Camp of the following: We have determined that your policy was submitted to Citizen's (Formerly FWUA) and was never issued due to a request for additional information which was not received. Ultimately the application and funds were returned to our agency. Enclosed please find our agency check for 1026.00 representing total refund of premium paid. Please advise if we can be of further assistance. Enclosed with the letter was a full refund of the premium which the Camps had paid for the windstorm insurance they never received. The Camps accepted the refund. While the hazard and flood insurance purchased by the Camps had been placed by A&M, the windstorm insurance had not been placed, as acknowledged by Ms. Herget in her letter of December 11, 2003. A&M's bank records indicate that a check for the windstorm insurance in the amount of $1,026.00 was written to Citizens on or about June 14, 2002, but that the check had never been cashed. Although this explanation appears contrary to the explanation given by Ms. Herget to the Camps in her letter of December 11, 2003, neither explanation was refuted by the Department. More importantly, regardless of why the windstorm insurance purchased by the Camps was not obtained by A&M, the weight of the evidence suggests that the fault lies not with Ms. Herget, but with Mr. Herget, who actually dealt with the Camps. The evidence also proved that it was not until sometime in late 2003 that Ms. Herget learned of the error and, upon investigating the matter, ultimately refunded in-full the amount paid by the Camps. The evidence failed to prove that any demand was made by Citizens for the premium for windstorm paid by the Camps or that she willfully withheld their premium. Count II: The Cipully Transaction. Carol Cipully began purchasing homeowner's insurance from A&M in 1999. In July 2003 Ms. Cipully refinanced her home. She believed that her homeowner's insurance would continue after the refinancing with her current insurance carrier, Citizens, through A&M. First American Title Insurance Company (hereinafter referred to as "First American") handled the closing of the refinancing. First American was responsible for issuing a check to A&M after closing in payment for the homeowner's insurance policy. Closing took place July 23, 2003. By check dated July 30, 2003, First American paid $1,658.00 to A&M for Ms. Cipully's insurance coverage.4 Of this amount, $1,435.00 was for hazard insurance with Citizens and $223.00 was for flood insurance from Omaha Property and Casualty Insurance Company (hereinafter referred to as "Omaha Insurance"). The check was received and deposited in the bank account of A&M on August 4, 2003. An Evidence of Property Insurance form was issued by A&M for Ms. Cipully's insurance on or about July 25, 2003. The form was initialed by Ms. Herget. A month or so after the closing, a water leak, which had caused property damage, was discovered in Ms. Cipully's home. When she attempted to contact her homeowner's insurer she ultimately discovered that the premium payment made by First American had not been remitted to Citizens or Omaha Insurance by A&M and, therefore, she had no homeowner's insurance. Ms. Cipully contacted Ms. Herget by telephone and was assured by Ms. Herget that she had insurance.5 Ms. Cipully's daughter, Tina Cipully, attempted to resolve the problem with Ms. Herget on behalf of her mother. In response to Tina Cipully's inquiries, Ms. Herget, rather than look into the matter herself, informed Tina Cipully that proof need to be provided to her by or on behalf of Ms. Cipully that would prove that a premium check had been sent to A&M from First American. Tina Cipully attempted to comply with Ms. Herget's request, contacting First American. An employee of First American faxed a copy of the cancelled check for $1,658.00 to Tina Cipully.6 A copy of the Evidence of Property Insurance dated July 25, 2003, from A&M was also faxed by First American to Tina Cipully. Tina Cipully sent a copy of the check she received from First American to Ms. Herget. She also sent a copy of a HUD-1 statement. When she later spoke to Ms. Herget, however, Ms. Herget told her she could not read the documents. The evidence failed to prove that Ms. Herget received a legible copy of the check. The copy of the HUD-1 form, while not totally legible, did evidence that $1,658.00 was to be withheld for payment of insurance premiums. Despite the fact that the check in the amount shown on the HUD-1 statement had been deposited in A&M's bank account, Ms. Herget continued to insist that Ms. Cipully prove her entitlement to redress. Had she made any effort, Ms. Herget should have discovered that a check in the amount of $1,658.00 had been deposited in A&M's bank account on August 4, 2003. Three and a-half months after having received the First American check, Citizens, after verifying that First American had paid for hazard insurance on behalf of Ms. Cipully, contacted Ms. Herget and requested payment of Ms. Cipully's insurance premium. Six months after being notified by Citizens, Ms. Herget paid Citizens the $1,435.00 insurance premium A&M had received in August 2003. The payment was made by check dated May 28, 2004. Ms. Herget did not explain why it took six months after being notified that Ms. Cipully had indeed paid her insurance premium to pay Citizens. Omaha Insurance had not been paid the $223.00 premium received by A&M in August 2003 at the time of the final hearing of this matter. Ms. Herget failed to explain why. Count IV: The Parker Transaction. On March 20, 2004, Elric Parker, who previously purchased homeowner's insurance from Citizens through A&M, went to A&M to renew his policy. He gave Ms. Herget a check dated March 20, 2004, for $1,064.00 in payment of six months of coverage.7 Ms. Herget gave Mr. Parker a receipt dated March 20, 2004, for the payment. The check was endorsed by Ms. Herget and deposited into the banking account of A&M on or about March 22, 2004. After waiting approximately three months for the arrival of a renewal policy which Ms. Herget told Mr. Parker he would receive, Mr. Parker became concerned and decided to contact A&M. He was repeatedly assured, at least on one occasion by Ms. Herget, that the renewal policy would be received. Mr. Parker subsequently contacted representatives of Citizens directly and was informed by letter dated January 8, 2005, that his insurance with Citizens had been cancelled in April 2004 for non-payment of the $1,064.00 premium Mr. Parker had paid to A&M. Rather than attempt to resolve the problem with Ms. Herget and A&M, Mr. Parker continued to deal directly with Citizens. After providing proof to Citizens of his payment of the premium to A&M, Citizens offered to issue a new policy effective April 2004 upon payment by Mr. Parker of the second six-month premium or, in the alternative, to apply his payment in March 2004 to a new policy for 2005. Mr. Parker opted to have his payment applied toward the issuance of a new policy providing coverage in 2005. This meant that he had no coverage for most of 2004 and part of 2005. Citizens notified Ms. Herget that the payment she had received from Mr. Parker should be remitted to Citizens. Ms. Herget investigated the matter and, when she confirmed that she had received his payment, paid Citizens $1,064.00 on or about February 10, 2005. Ms. Herget and A&M failed to remit Mr. Parker's insurance premium payment received in March 2004 until payment was made to Citizens in February 2005. That payment was made only after inquires from Mr. Parker and, ultimately, Citizens. While Ms. Herget speculated that Mr. Parker's file was misfiled and not properly processed, the failure to remit Mr. Parker's premium payment for almost a year was not explained by either party. The evidence failed to prove, however, that Ms. Herget failed to remit the premium to Citizens willfully or that she failed to remit the premium once it was determined that A&M had failed to so and demand was made by Citizens.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Margaret L. Herget violated the provision of Chapter 626, Florida Statutes (2003), described, supra, and suspending her license for six months. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2006.
