The Issue As a result of a request by Petitioner, Respondent determined that it had dredge and fill jurisdiction over certain property, and Petitioner timely requested a formal hearing regarding that determination. Accordingly, the issue in this proceeding is whether the Department of Environmental Regulation has dredge and fill jurisdiction over all or part of Petitioner's property.
Findings Of Fact Petitioner Maurice Fox owns certain real estate (hereinafter sometimes "the Fox property") located in central Palm Beach County consisting of all of Sections 12 and 13 and the easterly 3/4 of Section 24, (less certain rights of way) in Township 43 South, Range 41 East. Over a period of years, dikes have been constructed around the Fox property. The result is that the property is and has been enclosed by dikes. Larry O'Donnell, Respondent's dredge and fill supervisor in its West Palm Beach office, visited the Fox property on two occasions in 1978 after receiving a request from the Treasure Coast Regional Planning Council to determine whether the Department of Environmental Regulation (hereinafter "DER") would have dredge and fill jurisdiction over the property. After his first visit on February 24, 1978, he determined that it was questionable whether DER had dredge and fill jurisdiction over the property due to the lack of any noticeable direct connection to waters of the state. He returned to the Fox property on March 12, 1978, specifically to look for a connection between the property and waters of the state. He discovered a breach in the dike on the east side of the property approximately l/2 to 3/4 of a mile north of Okeechobee Boulevard. He observed water flowing from the west side of the dike through the breach to a ditch located just east of the dike, then south to Okeechobee Boulevard, then easterly and parallel to Okeechobee Boulevard approximately 25 yards, then under a culvert at Okeechobee Boulevard to a canal which ultimately drained into Canal C-51, which discharges into Lake Worth (the sole natural waterbody in the route), which discharges into the Atlantic Ocean. Based upon his observations, O'Donnell determined that DER did have dredge and fill jurisdiction over the Fox property due to a hydrological connection between the property and waters of the state. Until approximately five years ago there were "stop lock risers" at the culvert on the north side of Okeechobee Boulevard that prevented water from flowing through the culvert and were only opened when the Lake Worth Drainage District determined that opening the risers would not have an adverse effect on property south of Okeechobee Boulevard. Those "stop Lock risers" were removed so as to allow a constant flow. There is also a control structure at the C-51 Canal on Lake Worth that is sometimes closed preventing flow into Lake Worth and sometimes open. On May 16, 1984, Petitioner wrote DER requesting a determination as to whether DER maintained its position that it had jurisdiction over any proposed dredge and fill activities on the Fox property and the extent to which that jurisdiction extends over the subject property, citing some changes in circumstances since DER's 1978 determination. On August 29,1984, Petitioner again wrote DER, noting that DER had not yet indicated when a jurisdictional determination would be made, and citing several projects with allegedly similar characteristics to the Fox property over which DER had determined it had no jurisdiction. On November 9, 1984, Petitioner again wrote DER, noting that DER had still not made a jurisdictional determination and had not yet indicated when such determination would be made. On January 29, 1985, several DER employees, including a hydrologist and a botanist, visited the Fox property. Upon inspecting the dike to the east of that property, they discovered a breach with water flowing from the west through the breach into the ditch on the east side of the dike. The hydrologist followed the water as far as the culvert under Okeechobee Boulevard at which point the water was not backing up but was still flowing. It was therefore believed that the site is connected hydrologically and hydraulically to other waters of the state. On February 27, l9S5, DER responded to the May 16,_1984 request for determination of jurisdiction and the extent of any jurisdiction. DER advised Petitioner that it does have a dredge and fill jurisdiction for the majority of the "wetlands" located within the property boundaries and further advised Petitioner that any construction activities performed on, in, or over the "wetlands" will require a dredge and fill permit from DER prior to commencement of construction. Petitioner's request for a formal hearing followed receipt of that letter. Pursuant to a verbal agreement with the adjoining landowner to the east, on March 26, 1985, Petitioner filled the breach in the dike by excavating fill from the ditch on the east side of the dike in an area approximately opposite the breach. When DER personnel again visited the site on April 29 and 30, 1985, there was no breach, and no surface water was flowing over or through the dike. Accordingly, there was no hydrological connection on that date. Although Petitioner failed to obtain a permit for the excavation of the ditch to the east of the dike to obtain fill material for the breach, and although the issue of whether a permit was required for that activity was initially raised during the final hearing in this cause, DER changed its position during the hearing and decided that the fact that the fill may have come from the ditch was not relevant to the question of jurisdiction in this proceeding although that issue may be raised elsewhere. Since there is a fall from the Fox property east toward the historic Loxahatchee Slough, the dike to the east of the Fox property was constructed in 1965 to impound that overland flow and prevent it from flowing onto Petitioner's neighbor's property to the east. Although the dike was described at various times during the final hearing in this cause as being adjacent to the Fox property or next to the Fox property, the parties agree that the dike is not located on the Fox property but rather is located on property to the east of the Fox property. No evidence was offered to show the distance between the dike and the eastern boundary of the Fox property however, an aerial photograph admitted in evidence without objection clearly shows that the dike is not adjacent to the boundary of the Fox property although it is near the eastern boundary. That aerial photograph clearly indicates that the property east of the Fox property continues for a distance west of the dike where it is then abutted by the right of way for State Road No. 7. Repairs have been made to the east dike on several occasions, starting in the mid-70's. The breach which existed on January 29, 1985, was caused by a combination of factors. First, there is a substantial amount of all-terrain vehicular traffic crossing the dike at that point, causing the dike to wear down and weaken. Second, the hydrostatic head increases pressure against the weakening dike. Lastly, the repairs may not be properly done as was the case for the March, 1985 repair where the placed fill was not compacted and was porous. With such a combination of factors, the dike is likely to fail again. When the breach was filled in March of 1985, a ramp was constructed approximately 60 feet north of the site of the breach. Since the breached location was in a depressed area which was very wet on both sides, the ramp was designed to provide a crossing for off-road vehicles at a drier point. Other than constructing the ramp, Petitioner has taken no steps to discourage vehicular traffic from utilizing his property or driving over the dikes. No signs have been posted, and no fences have been built. Petitioner has never obtained a permit from DER prior to effectuating any repairs to the dike, and no DER personnel had ever advised that such a permit would be required. Before the breach in the east dike was filled in March of 1985, it measured no less than 20 and no more than 50 feet wide. The dike in question is approximately 1 mile long and connects to another dike which is approximately 2 miles long. Needed repairs to the dike are not always effectuated immediately. During extended periods of time, particularly during wet periods, the necessary equipment is unable to reach the specific locations requiring repair. Therefore, there are occasions when the dike is open during wet periods for long periods of time. At the time of the hearing, the parties stipulated that there was presently no water flowing off of or on to the Fox property. Witnesses for both parties agreed that, even when the dike was breached, water did not always flow through the breach. In hydrological terms, the flow of water through the dike when it was breached can be characterized as "intermittent." Under DER's rules, an intermittent stream is one that flows only immediately after rainfall. No data was offered as to the amount or recency of rainfall in the area prior to the two observations by DER personnel of water flowing through a breach in March 1978 and January 1985. One of DER's witnesses admitted that he did not have sufficient information to determine whether the flow of water when a breach exists would be considered intermittent under the Department's rules. The parties further agree that a breach in the dike does not have the effect of draining the Fox property. During such times, wetlands and impounded areas still exist due to the elevations within the Fox property boundaries. While the area of the breach itself was bare of vegetation, those plants that surrounded the breach were on the Department's list of transitional indicator species. As stipulated by the parties, there is one area along the east dike where a strip of cladium jamaicensis (saw grass) is growing over the dike north of the breached area. The parties further agree that the saw grass is the dominant species in the ground cover stratum at that particular point and that cladium jamaicensis is an indicator species listed in the submerged lands vegetative index for fresh waters in Florida under DER's rules. Witnesses for both parties further agree that there are a number of non-indicator species present in the area where the saw grass grows across the dike. In fact, of the plants identified, only the saw grass is on DER's indicator species list. Looking at the area in its entirety, non- indicator species are dominant. Where the saw grass crosses the dike, the dike is three feet high and shows no evidence of water inundating the area or flowing over the top of the dike. It appears that the dike in that area included within it bits of muck and saw grass, which explains why the saw grass could be growing there despite not being inundated by water. DER's witness admits that saw grass can grow in an area not regularly inundated with water. The presence of the saw grass alone, therefore, does not establish a vegetative connection between the waters of the state in the excavated ditch on the east side of the dike and the wetlands on the west side of the dike even though saw grass is among other wetland indicator species growing in the ditch to the east of the dike and is further present on the west side of the dike.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered determining that DER has failed to prove that it has dredge and fill jurisdiction over the Fox property. DONE and RECOMMENDED this 26th day of September, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985.
The Issue Whether a decision of the Department of Health and Rehabilitative Services to award a contract for A Community Based Residential Moderate Risk Program to Include Re-entry After-Care Services was arbitrary and failed to maintain the integrity of the bidding process.
Findings Of Fact THE PARTIES. Eckerd is a Florida not-for-profit corporation. Stipulated Fact 1. The Department is an agency of the State of Florida. The Department is charged with the responsibility to provide care, custody and treatment of delinquent youths. Stipulated Fact 2. Wolverine is a non-profit, Michigan corporation. Stipulated Fact 3. Starting June 12, 1992, Wolverine was registered to do business in Florida. THE DEPARTMENT'S REQUEST FOR PROPOSAL. Issuance of the Request for Proposal. On March 6, 1992, the Department released a Request for Proposals titled "Community Based Residential Moderate Risk Program to Include Re-Entry Aftercare Services" (hereinafter referred to as the "RFP"). The program sought by the Department was to be located in Okeechobee County, Florida. Stipulated Fact 4. In the RFP, the program sought by the Department was described, in part, as follows: The contracted program will serve youth 14-18 years old and provide residential services to thirty (30) youth in the residential component and thirty (30) youth in the non- residential re-entry components. The program is designed to serve youth in moderate risk classification who require close supervision. The program will be operational 24 hours a day, 7 days a week. Youth placed in this program may have at least one prior felony commitment or one prior placement in a lower restrictiveness level program. Page 4, RFP, Joint Exhibit 1. The RFP contained a description of the services sought by the Department and criteria for the numeric evaluation of proposals received in response to the RFP. Stipulated Fact 6. Responses to the Department's RFP. The Department received four responses to the RFP. A response was received from both Eckerd and Wolverine. Responses were also received from D & P Enterprises and Delta Social Services. Stipulated Fact 5. The Department's Review and Ultimate Decision. The RFP specified that proposals were to be evaluated by five employees of the Department. The employees who participated in the evaluation of the proposals were Maria Dawson, Lois Martinez, Hubert Melvin, Donna Newsome and Gail Porter. Stipulated Fact 7. The RFP provided that any proposal which scored less than 910 points would not be considered for an award of a contract pursuant to the RFP. The proposals of D & P Enterprises and Delta Social Services did not attain the minimum score. Therefore, their proposals were not afforded further consideration. Stipulated Fact 8. The proposals of Eckerd and Wolverine attained the minimum score required by the RFP for further consideration and were fully evaluated. There were 1,515 total points which could be awarded a bidder pursuant to the RFP. Eckerd's proposal was ultimately awarded a total score of 1,271 points. Stipulated Fact 9. Wolverine's proposal was ultimately awarded a total score of 1,410 points. Stipulated Fact 9. The Department's evaluators ultimately recommended that the contract sought in the RFP be awarded to Wolverine. Stipulated Fact 10. The recommendation of the Department's evaluators was accepted and on May 4, 1992, the Department posted notice of its intent to award the contract to Wolverine. Stipulated Fact 10. On May 6, 1992, Eckerd filed with the Department its Notice of Intent to protest the intended award to Wolverine. Stipulated Fact 11. On May 18, 1992, Eckerd filed a Formal Written Protest with the Department. FINANCIAL VIABILITY OF A BIDDER. Requirements of the RFP. Among the requirements contained in the RFP was the following: 6. Bidders must also include in their proposals the following additional information to support their ability to provide the proposed services: o A complete set of financial statements for the bidder's most recent fiscal years. If the financial statements have been independently audited, the entire report must be submitted. . . . . [Emphasis added]. Page 12, Joint Exhibit 1. This requirement of the RFP was repeated on page 22 of the RFP. The RFP specifies the criteria to be considered in evaluating proposals and a rating or scoring range for each criterion. Among the criteria to be considered, the RFP contained the following specific criteria and range of scores relating to the financial statements required to be submitted by a bidder: Rate the bidder's submitted financial statements (0-20) The financial statements are independently audited and contain appropriate assurances by the auditor that the financial statements fairly present the financial position of the bidder (0-20) Page 26, Joint Exhibit 1. The potential scores for these criteria were to be multiplied by a weighted value of four, for a potential total score of 160 points for the requested financial statements. Scoring of Financial Statements. Wolverine's and Eckerd's proposals received the same weighted score for the financial statements submitted with their proposals: 72 points for one criterion and 80 points for the other; a total of 152 out of 160 points. Joint exhibits 4 and 5, page 26. Wolverine's Financial Statements. In a cover letter to Wolverine's proposal dated April 8, 1992, from Robert E. Wollack, Executive Director of Wolverine, Mr. Wollack stated, in pertinent part, the following: This proposal is being made under the corporate name and structure of Wolverine Human Services, Inc., a non-profit Michigan corporation . . . . However, I must point out that we are in the process of forming a non-profit Florida corporation . . . and will have this process completed prior to the effective date of the contract. . . . Mr. Wollack will serve as Chairman of the Board of Directors for the Florida corporation we are forming as indicated above. Cover Letter, Joint Exhibit 2. Wolverine's intent to establish a Florida corporation is further reflected in the following statement included in Wolverine's proposal: Wolverine Human Services has been a Michigan non-profit agency since 1986. As a bidder for this contract, processes are underway to establish a new non-profit corporation in the state of Florida. . . . . Finally, Table III illustrates the intent of Wolverine Human Services to establish a separate Florida non-profit corporation upon receipt of the contract for the Community Based Residential Moderate Risk Program. It is anticipated that expertise from Wolverine's Michigan executives will be utilized during the start-up period and for continued training and consultation. Page 69, Joint Exhibit 2. The financial statements submitted with the Wolverine proposal were the financial statements of Wolverine and not the yet-to-be-formed Florida corporation that Wolverine represented in its proposal it apparently intended to use to carry out its proposal if awarded a contract pursuant to the RFP. At the final hearing, Wolverine submitted proof that it had qualified to do business in Florida the day that the hearing began. This fact was not known to the Department at the time the proposals were submitted or, more importantly, at the time the Department evaluated the proposals and made its initial decision. Therefore, the fact that Wolverine qualified to do business in Florida is not considered relevant. While it is true that Wolverine did not specifically address the independent finances of the Florida corporation it intended to form, Wolverine's proposal, when considered as a whole, is sufficient for the Department to conclude that Wolverine is the entity that is responding to the RFP. The evidence failed to prove that the financial information provided by Wolverine was not sufficient for the Department to determine financial feasibility regardless of what vehicle Wolverine uses to carry out its proposed programs. Based upon Wolverine's overall proposal, the Department may reasonably look to Wolverine to as the bidder for purposes of entering into a contract and for purposes of insuring that Wolverine fulfills its representations. The Department may reasonably require that Wolverine stand behind any proposed Florida corporation or any other entity that Wolverine chooses to use to carry out its proposal. The weight of the evidence proved that Eckerd is a financially stronger entity than Wolverine. Most of the persons who evaluated the proposals generally recognized this fact and witnesses who testified on behalf of Eckerd agreed. The RFP contemplated that each proposal would be evaluated separately. The RFP did not contemplate that proposals would be evaluated as to any criterion in relation to the other proposals. Comparative review of proposals is not required or contemplated in the RFP. Having concluded that a bidder had the financial ability "to provide a proposed service", there was no requirement in the RFP that the bidder then be compared to the other bidders and be awarded more, less, or the same amount of points as the other bidders depending on their financial ability. Therefore, once the Department determined whether Wolverine had the financial ability "to provide a proposed service" it was not required to consider Wolverine's financial ability in relation to Eckerd's financial ability. It cannot, therefore, be concluded that the Department acted arbitrarily in evaluating the financial ability of Wolverine's proposal when it awarded Wolverine the same number of points Eckerd was awarded for financial ability once the Department reasonably concluded that Wolverine was able (or solvent) to "provide a proposed service". The weight of the evidence failed to prove that Wolverine is not financially able "to provide a proposed service." The weight of the evidence failed to prove that the Department's evaluation of financial information submitted with the proposals it reviewed was unreasonable. PROPOSED PROGRAMS. The Bobby M Decree. In 1987 a Consent Decree was entered into in a class action Federal lawsuit. The class action had been initiated by a delinquent youth in Florida identified as "Bobby M" who challenged his care by the Department. The Consent Decree (hereinafter referred to as the "Bobby M Decree"), required that the delinquent youth program in Florida be reformed. The Department has developed an operations manual to set out the policy and procedure it believes necessary to carry out the Bobby M Decree. That manual is the Operations Manual for Delinquency Residential Treatment Programs (March 1, 1991) (HRSM 175-2). Petitioner's exhibit 1. The requirements of the Bobby M Decree are incorporated in HRSM 175-2. The relevant requirements of the Bobby M Decree will apply to the facility which is the subject of this case. The facility sought in the RFP will have to be operated in compliance with the Bobby M Decree and HRSM 175-2. Requirements of the RFP. The RFP does not specifically state that the Bobby M Decree must be complied with. The RFP does, however, state the following: Within 90 days after the award of the contract, the Provider will develop a policy and procedures manual to ensure that services provided to clients are within the applicable provisions of HRSM 175-2, "Community Based Delinquency Commitment Programs", HRSM 65-2 . . . and HRSM 175-8 . . . . The Provider will operate and manage the program in compliance with all health and safety standards for residential facilities. Page 11, Joint Exhibit 1. This requirement of the RFP requires compliance of proposals with HRSM 175-2, and, to the extent that it incorporates the requirements of the Bobby M Decree, compliance with the Bobby M Decree. The RFP, however, allows bidders 90 days after award of the contract to develop a manual to insure such compliance. The RFP contains a general description of the services which are to be provided by bidders at page 4 of the RFP. The "program components" to be included which are listed in the RFP are consistent with the requirements of HRSM 175-2. The RFP goes on to more specifically describe each required program component. Pages 5-8. The RFP, consistent with HRSM 175-2 and the Bobby M Decree, specifies that a proposed program: Must include "non-residential re-entry components." Page 4, Joint Exhibit 1; and Should place an emphasis on "helping youth sustain increased self- esteem and pro-social behavior as they practice newly acquired skills in real life home, school and community settings." Page 4, Joint Exhibit 1. The RFP also, consistent with HRSM 175-2 and the Bobby M Decree, requires individualized treatment and a focus on re-entry of the youth. The RFP also contemplates "treatment in a community based residential setting . . . ." Page 3, Joint Exhibit 1. "The overall goal . . . is to demonstrate the feasibility of serving . . . youth in . . . a non-institutional atmosphere . . . ." Id. The RFP also provides that, as part of the "treatment modalities/counseling services" program component, "[c]ontrol theory and positive peer culture, employing small group techniques, will be the treatment methods of choice." This component goes on to describe other treatment modalities/counseling services to be emphasized. Page 5, Joint Exhibit 1. Wolverine's Proposed Treatment Program. The weight of the evidence presented in this case concerning Wolverine's proposed program, as it relates to the Bobby M Decree, HRSM 175-2 and, more importantly, the RFP, failed to prove that the Department acted arbitrarily in finding Wolverine's proposal in compliance with the RFP and in awarding the points awarded to Wolverine (the maximum number of points available for proposed programs was awarded to Wolverine) for its program for essentially two reasons: First, the evidence presented by Eckerd only provided a professional difference of opinion as to the relative benefits of Wolverine's proposed as compared to Eckerd's proposed program. At the heart of Eckerd's disagreement with the Wolverine proposed program is the use of a "Behavior Modification Point/Level System." Pursuant to this system points are awarded or deducted depending on how a youth complies with detailed rules of behavior. See pages 20-29, Joint Exhibit 2. The use of such a system is an integral and central part of Wolverine's program. The suggestion that the use of this system does not address individual needs and ignores and is inconsistent with the concept of a therapeutic community and control theory is not supported by an overall consideration of the Wolverine proposal. Although the point system proposed by Wolverine is not inconsistent with a more traditional institutional compliance model, the weight of the evidence failed to prove that the use of the system necessarily means that Wolverine's proposed program does not meet the requirement of the RFP that programs include a "residential rehabilitative environment with a non-institutional atmosphere . . . ." Secondly, even when the testimony of Eckerd's witnesses is viewed in its most favorable light for Eckerd, that testimony failed to prove that the Department's evaluation of Wolverine's proposed programs was unreasonable when the manner in which the Department reviewed Wolverine's proposal is taken into account. The Wolverine proposal, which is somewhat lengthy, was read and evaluated by the Department employees assigned to review proposals. Those employees are all knowledgeable in the area of providing of care to delinquent youth such as the care contemplated by the RFP. They are also knowledgeable about the Bobby M Decree and HRSM 175-2. Based upon their review of the Wolverine proposal, the evaluation committee concluded that Wolverines' proposed program was in compliance with the RFP. The evidence presented by Eckerd was insufficient to overcome the evaluation committee's review of the Wolverine proposal and the conclusion of the evaluators at the final hearing that the Wolverine proposal was the better proposal even after they had heard Eckerd's evidence. The weight of the evidence failed to prove that the Department failed to evaluate Wolverine's proposed program consistent with the RFP or that the integrity of the bidding process was undermined by the Department's evaluation of Wolverine's proposed program. OTHER REQUIREMENTS OF THE RFP AT ISSUE. General. Eckerd presented evidence which raised questions concerning a number of other aspects of the Wolverine proposal which Eckerd has suggested affected the evaluation of the Wolverine proposal. To some extent, the evidence did indicate that the Department's evaluators had not considered every detail of the Wolverine or the Eckerd proposals. The evidence also generally indicated that to some extent the Department's evaluators might even have been impacted to some extent in their evaluation of the Wolverine and Eckerd proposals had they considered various matters raised during the litigation of this matter. All of the instances raised by Eckerd, however, considered separately or as a whole, were relatively insignificant. Additionally, all of the evaluators agreed that they still believed that the proposals had been reasonably evaluated and that they did not believe that the decision to award the contract to Wolverine was unreasonable even after being apprised of the issues raised by Eckerd. The weight of the evidence failed to prove that the Department acted unreasonably in deciding to award a contract to Wolverine or that the integrity of the bidding process was not maintained by the Department when any of the alleged deficiencies in Wolverine's proposal are considered individually or as a whole. As recognized by Eckerd, it is difficult to determine exactly how Wolverine's final score would have been affected had evaluators considered every detail of the proposals. Such a determination is not necessary in this case, however. The evidence failed to prove that any errors in evaluating the Wolverine proposal would have changed Wolverine's overall score or, more importantly, that any such errors are of such consequence or magnitude that the Department's proposed award of a contract to Wolverine can be said to be unreasonable. Wolverine's Proposed Staffing. The weight of the evidence concerning Wolverine's proposed staffing generally proved the following: Q Given your experience, do you feel that the program indicated in the Wolverine proposal would be one that would be difficult to implement with the staffing that Wolverine proposed? A I think, as I testified in my deposition, it would be difficult, probably, from Day One to implement everything they've outlined in their proposal. But I think that, over a period of time, that it could be phased in. Q But do you perceive some difficulty? A There's always difficulty in implementing programs, even sometimes in routine programs there can be difficulty. Transcript of Final Hearing, Pages 292-293. Supervisory staff should be available during the waking hours, which is generally considered to be 6:00 a.m. to 10:00 p.m. Wolverine proposed to have supervisory staff at the facility during all waking hours. Wolverine's proposed staff consists primarily of three group leaders and thirteen camp counselors. Wolverine also proposed to staff the facility with one program director, one clinical director and three re- entry/aftercare workers. Based upon Wolverine's proposed staffing pattern, the only supervisors at the facility between 6:00 a.m. and 8:00 a.m. any day of the week, and between 8:00 p.m. and 10:00 p.m. on Tuesday, Wednesday, Thursday and Friday, will be camp counselors. Eckerd's expert witnesses (Mr. Stepanik and Mr. Plant) expressed concern about the use of camp counselors as supervisors because of their belief that camp counselors are "entry level" personnel and because camp counselors are only required to hold a diploma from high school. There are two problems with the testimony of Mr. Stepanik and Mr. Plant in this regard. First, the evidence failed to prove that the persons actually hired as camp counselors will be "entry level" or that they will only hold high school diplomas. More importantly, at best, their testimony essentially only supported some concern about the possible quality of the camp counselors. Their testimony did not, however, support a finding that the camp counselors will not be able to adequately supervise. Neither witness proved that it was not possible that Wolverine's proposed staffing patterns will not provide adequate supervision. Wolverine's proposed staffing also only included provision for one cook. That cook will only be available at the facility from Monday to Friday. No provision is indicated in the Wolverine proposal for a cook during the weekend. Two evaluators indicated that they did not recall being award of the lack of provision for a cook during the weekend and expressed concern. Both evaluators also indicated that they would be concerned only if some provision for providing meals during the weekend is not provided for by Wolverine. The Wolverine proposal does not indicate how meals will be provided to residents during the weekend. Wolverine's proposal does, however, indicate that "[t]he food service program will be designed utilizing the HRS manual 65-2 as a guideline." Page 48, Joint Exhibit 2. Wolverine has represented in its proposal that three meals a day will be provided to resident youth. When considered as a whole, the evidence failed to prove that the Department's consideration of Wolverine's proposed staffing was unreasonable or inconsistent with the RFP. Wolverine's Proposed Food Service. The existing facility at Okeechobee where the program sought by the RFP will be provided does not have a kitchen adequate to serve the needs of the facility for meal preparation. Currently, food services are provided by a training school adjacent to the Okeechobee facility. The evidence failed to prove that the lack of a full kitchen is the responsibility of the bidders. Any oversight in this regard appears to be that of the Department for failing to provide a sufficient kitchen. When this fact is considered with Wolverine's commitment to provide adequate meals, it cannot be concluded that the Department's consideration of Wolverine's proposed staffing was unreasonable or inconsistent with the RFP. Wolverine's Proposed Educational Programs. Wolverine has proposed to rely on the Okeechobee School Board to provide required educational programs: Wolverine Human Services plans to arrange education services directly with the local school district. Wolverine will provide Treatment Staff to work closely with school officials and teachers and Educational Consultants to assist in designing an Educational program that will best meet the Students' needs. Page 51, Joint Exhibit 2. Wolverine also has described generally the type of education programs it believes should be provided. Wolverine did not represent in its proposal that it had explored the willingness of the Okeechobee School Board to provide the educational programs required. Nor did Wolverine explain whether the Okeechobee School Board is required to provide such assistance. The Okeechobee School Board does not now provide educational services to the Okeechobee facility. The weight of the evidence failed to prove that Wolverine will not be able to arrange for educational services through the Okeechobee School Board. More importantly, even if the Okeechobee School Board fails to agree to provide educational services, Wolverine is committed to providing the necessary educational services. The Wolverine proposal concerning prevocational and vocational training is confusing. It is not clear whether Wolverine intends to provide such services directly or through the Okeechobee School Board. If Wolverine intends to provide the services directly, it has not indicated it will have certified vocational teachers available. If Wolverine is proposing to provide prevocational and vocational training through the Okeechobee School Board, finding of fact 56 applies equally to these services. If Wolverine is required to provide the services, the fact that it failed to indicate that it will use certified vocational teachers is insufficient to conclude that the Department has acted unreasonably. When considered as a whole, the evidence failed to prove that the Department's consideration of Wolverine's proposed educational, prevocational and vocational training was unreasonable or inconsistent with the RFP. Wolverine's Proposed Reentry Services. Reentry services are to be provided to a maximum of thirty youths. Reentry services are comparable to adult parole. The RFP required that evaluators were to rate proposed staffing patterns "to ensure quality of service provision." Page 26, Joint Exhibit 1. Wolverine was awarded the maximum score for its proposed reentry services and staffing. Joint Exhibit 4. Pursuant to its staffing pattern, Wolverine proposed three reentry/aftercare workers. That amounts to a ratio of reentry workers to youths in reentry of one worker to ten youths off campus and ten youths on campus. The evidence, however, failed to prove that the reentry workers would be involved with all thirty youths on campus or all thirty youths off campus all of the time. The most desirable ratio of reentry workers to the Department is a ratio of one to eight youths off campus and four on campus. Wolverine has not proposed the most ideal staffing ratio for reentry care. Wolverine may also have difficulty in fulfilling its representations concerning the provision of reentry care with its proposed staffing ratio. The evidence, however, failed to prove that Wolverine will not or can not provide the reentry care it has represented it will provide or that its proposed reentry care is not adequate. All three evaluators that expressed concern about reentry staffing only indicated that Wolverine may experience some "difficulty." They also agreed, however, that, even with the higher staffing proposed by Wolverine, the provision of adequate reentry services was "doable." When considered as a whole, the evidence failed to prove that the Department's consideration of Wolverine's proposed reentry services was unreasonable or inconsistent with the RFP. The Use of Peer Restraint. As indicated, supra, the RFP does not specifically require that a proposal be consistent with HRSM 175-2 when submitted. Instead, the RFP requires full compliance of proposals with HRSM 175-2, 90 days after award of the contract when the winning bidder is required to develop a manual to insure such compliance. Wolverine has indicated in its proposal its intent to comply with HRSM 175-2 and such compliance may be required by the Department. The evidence, therefore, failed to prove that Wolverine will not comply in all respects with HRSM 175-2. Section 11-2 of HRSM 175-2 provides requirements concerning behavior management systems which may be utilized by facilities such as the proposed Okeechobee facility. It is provided in Section 11-2 that Appendix C should be reviewed for "guidelines" for managing behavior. Appendix C contains, in pertinent part, the following guidelines: Despite such efforts, youth may act out to such a degree that they actively attempt to hurt themselves or others; destroy property, or run away. When the inappropriate behavior continues to escalate facility operating procedure will direct staff and ensure: To move the group away from the youth under stress as precautionary measure and as a further attempt to alleviate the stressful situation. . . . . . . . If the behavior of the youth continues to escalate, the staff should attempt to lead the group and the youth under stress to additional supervisory and support staff. IF physical acting out by the youth occurs, the minimum amount of physical restraining necessary to tender the situation safe may be unavoidable. (Restraint, however, is never used in order to force a youth into compliance, and should never be used to control cursing, screaming, refusal to participate in an activity, or refusal to cease a particular behavior other than those listed above, i.e., attempting to hurt self or others; destroying property, attempting to run away.) In situations where conditions for restraint are met, two trained staff should be present whenever possible. . . . If conditions described above exist and only one staff member is present, defensive physical maneuvers may be employed by the staff member in order to protect the youth and/or staff member. Involvement of youth in the restraint of another youth is not permitted unless as a last resort to prevent injury or catastrophe. In such extreme cases, all details must be documented as an incident. Pages C-3 and 4, Petitioner's exhibit 1. The use of other youths to restrain one youth is referred to as peer or group restraint. The Wolverine proposal provides the following definition of "Group Restraint": Group Restraint is used when all verbal means have failed and the subject has become violent, posing a danger to himself or others. It must be ordered and directed by the supervising staff member, and is limited to physically assisting the subject to comply with the standard and then preventing him from doing injury to himself or others until his behavior is once again under control. Using the Positive Peer Culture Model, physical assistance is a last resort and is used only until the subject is once again in control of himself. Page 40, Joint Exhibit 2. The Wolverine proposal, with regard to the circumstances which must exist for peer restraint to be used, is more restrictive than the requirements of HRSM 175-2. The Wolverine proposal, however, does not specifically provide that if restraint becomes necessary that the staff member present will attempt to get other staff involved and that "two trained staff should be present whenever possible" before resorting to peer restraint. Instead, the Wolverine proposal indicates that peer restraint will be "used when all verbal means have failed . . . . " The failure to specify that staff restraint must be attempted, if possible, after "all verbal means have failed" and before the use of peer restraint is insignificant when it is remembered that Wolverine has represented that it will comply with HRSM 175-2 and it is required to establish a manual for the operation of its facility specifying how it will comply with HRSM 175-2. Wolverine's proposal does not include a specific representation that the use of physical restraint on a youth will be reported to the Department. To the extent that the Department requires by rule that such use of physical restraint be reported, the evidence failed to prove that Wolverine would not comply with such a requirement. Wolverine did represent in its proposal that it would comply with Department rules. When considered as a whole, the evidence failed to prove that the Department's consideration of Wolverine's proposed use of peer restraint was unreasonable or inconsistent with the RFP. IMPROPER PURPOSE. The evidence in this proceeding failed to prove that Eckerd's protest to the Department's proposed award of the RFP to Wolverine was filed or pursed to harass, to cause unnecessary delay, for a frivolous purpose, or to needlessly increase the cost of litigation. The evidence failed to prove that any party participated in the proceeding for an improper purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order concluding that Eckerd has failed to prove that the Department acted in a manner that was illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious or in a way that would subvert or undermine the purposes and objectives of the competitive bidding process, and dismissing Eckerd's Formal Written Protest and Request for Formal Administrative Hearing, with prejudice. DONE and ENTERED this 26 day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26 day of August, 1992. APPENDIX Case Number 92-3294BID Eckerd and the Department have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Wolverine did not file any proposed findings of fact. Eckerd's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-4 Preliminary statement. 5 2, 4-5 and hereby accepted. 6 1, 3 and 7. 7 6 and 8. 8 9. 9 10 and 12-14. 10 15. 11 17. 12 18. 13 19. 14 18 and 26. 15-16 26 and hereby accepted. 17 19 and 26. See 28. Not supported by the weight of the evidence. See 18 and 27-29. See 20 and 21. 20 21. 21-22 Hereby accepted. 23 Not supported by the weight of the evidence. See 22-25. 24 31. 25 33. The last sentence is not relevant. 26 32. 27 See 34-35. 24 and hereby accepted. See 36-39. See 27 and 37. It must be kept in mind that crucial to a review of this matter is the requirements of the RFP and not HRSM 175-2 or the Bobby M Decree. 30-31 See 36-37. 32-33 See 38. 39 and hereby accepted. Not supported by the weight of the evidence. See 40. The last sentence is not supported by the weight of the evidence. 37 40. See 40. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. See 40. Not supported by the weight of the evidence. See 40. The burden of proof in this case was on Eckerd and not the Department or Wolverine. Generally correct. The next to the last sentence is not relevant-the burden of proof was on Eckerd and not the Department or Wolverine. The last sentence is not supported by the weight of the evidence. See 42. See 42-43. Although there was testimony concerning the fact that Wolverine would likely have difficulty implementing its programs with its proposed staffing, the evidence failed to prove that the difficulty could not be overcome. Not supported by the weight of the evidence. See 45-48. 45 See 59-50. 46 See 52-53. 47 See 54-55. See 57. See 55. 60 and 63. The fifth sentence is not supported by the weight of the evidence. See 64. 61-62. See 65. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. See 67-72. See 68. See 68. The last sentence is not supported by the weight of the evidence. See 72. Not supported by the weight of the evidence. See 42-43. Mr. Plant did indeed score the proposals. The testimony concerning how Mr. Plant scored the proposals was generally irrelevant. Hereby accepted. Not supported by the weight of the evidence. Hereby accepted. What was stated outside the RFP is not relevant. Not supported by the weight of the evidence. 62-63 Not supported by the weight of the evidence. To the extent that inconsistencies existed, the evidence failed to prove that they were so significant to conclude that the Department acted unreasonably. 64 Not supported by the weight of the evidence. 65 74. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4. 5 7. 6 6. 7 8. 8 9. 9 12-13. 10 14-15. 11 16. 12 Hereby accepted. 13-15 These proposed findings of fact are generally correct. They have been considered in determining the weight to be given to Mr. Plant's testimony and are subordinate to the facts pertaining more directly to the issues in this case. 16-21 and These proposed findings of fact are also 23-34 generally correct summaries of some of Mr. Plant's testimony. That testimony did not support the ultimate issues raised by Eckerd. 22 Hereby accepted. 35-40 Hereby accepted. 41-46 Not relevant. 47 8. 48-50 Hereby accepted. COPIES FURNISHED: Martha Harrell Chumbler, Esquire CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. 215 South Monroe Street Suite 500 Tallahassee, Florida 32302 Madonna M. Finney Assistant District Legal Counsel District 9 Legal Office Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 Mark S. Levine, Esquire 245 East Virginia Street Tallahassee, Florida 32301 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue Whether the Respondent discriminated against the Petitioner on the basis of race by demoting her.
Findings Of Fact The Petitioner failed to appear and introduced no evidence in support of her petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's petition be denied. DONE AND ENTERED this 8th day of October, 1993, in Tallahassee, Florida, nunc pro tunc to October 1, 1993. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of October, 1993. COPIES FURNISHED: Jeffrey J. Reitmyer, Esquire K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084-3163 Seitu Muhammad Kokayi Third Floor 3583 13th Street, North West Washington, Distric Columbia 20010 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of June, 2007.
Findings Of Fact Since 1976, DHRS has leased two Xerox 9200 copy machines for its Tallahassee headquarters. The two units together rent for a total of $9,945.11 per year. On September 27, 1984, Mr. Charles A. Stryker, account manager for Xerox in Tallahassee, by letter to the director of central general services for DHRS in Tallahassee, proposed several alternative plans for DHRS to obtain the equipment necessary to handle its central reproduction duplicating needs. Among the proposals submitted by Mr. Stryker was a purchase of the present Xerox 9200 units currently being leased from Xerox. This proposal pointed out that the machines in question had reached the maximum equity per machine that they could earn on a rental basis and that among other things, Xerox would be willing, if DHRS were to buy them, to provide nine months free maintenance on the units and a guaranteed 50 percent trade-in value if the units were to be traded in on new units from Xerox within 12 months from date of purchase. DHRS officials, recognizing the fact that maximum equity on the machines had been realized and foreseeing the opportunity to obtain the machines at a substantial dollar saving to the State, by letter dated October 10, 1984, contacted the appropriate officials at the Department of General Services (DGS), requesting authority to procure these particular used units from Xerox on a sole source procurement. On November 1, 1984, DGS responded denying sole source procurement authority, but granting authority to purchase two suitable duplicating systems through the competitive bid process. It was the opinion of DGS that the equipment was available and the fact that the total cost of the acquisition exceeded the upper limit of $2,500.00, the competitive bid process was necessary. Thereafter, a purchase requisition was submitted on November 2, 1984, by Mr. Vick which was approved. On November 7, 1984, Mr. Vick forwarded a memorandum to Mr. Cox which stated: "Please determine how we are going to purchase the (2) Xerox 9200's. Their offer ends December 15, 1984." An Invitation to Bid on Bid No. 85-41 BC for two used high speed, high volume xerographic duplicating systems was mailed to Xerox and Kodak on November 19, 1984. The Invitation to Bid form reflected the bids would be opened on December 7, 1984, at 2 p.m. The Invitation to Bid forms were sent to Xerox and Kodak only because they were the two companies in the area which manufactured and supplied equipment which would meet the specifications required by DHRS. Both Xerox and Kodak submitted their bids on December 6, 1984. Xerox's bid price was $29,764.00 per machine for a total price of $59,528.00 for the used machines that were currently in use at DHRS headquarters. As a part of its bid, Xerox offered a rebate voucher in the amount of $5,990.75 to cover the purchase of 4 620 Memorywriter typewriters and 7 printwheels. This rebate was part of a National promotion to all government customers. Kodak's bid was for $134,280.00 per machine for a total price of $268,560.00 for new Kodak model 250AF machines. Mr. Goodrich admits that Kodak does not manufacture a xerographic which meets the technical qualifications contained on page 5 of the Invitation to Bid. In addition to this, he points to the specifications listed in the special conditions and technical specifications section of the IFB contained on pages 3 and 4, specifically number 3 which calls for full maintenance for a period of 9 months following installation at no expense to the department and a guaranteed 50 percent trade-in allowance within 12 months of purchase. Kodak contends that since as Kodak has its own price specials which it could have offered if the terms of the IFB were not so narrowly defined, and it was thereby precluded from competitively bidding on this contract, the inclusion of those terms mentioned above effectively negated the competitive bidding process. Admittedly, Kodak did not submit a proposal to DHRS at the time Xerox did prior to the issuance of the IFB. It is for this same reason that Kodak's bid referred to new equipment rather than the used equipment called for under the IFB because at the time, Kodak did not have any used equipment which would meet the terms and conditions of the invitation to bid. Mr. Goodrich admits also that Kodak did not compete for the original contract to provide xerographic equipment in 1976 because it, was not in operation in the Tallahassee area at that time and could not have bid competitively. However, they have equipment which can do substantially what the Xerox 9200, in use since 1976, can do and more, and this was the item they offered in their response to the IFB. The IFB in this procurement was developed by Mr. Cox who built the solicitation utilizing the general conditions dictated by DGS for all procurements, the technical specifications developed by DHRS' technical services division, and the special conditions which he developed to satisfy the needs of the department in this procurement. Specifications calling for used equipment was utilized because it was felt that a purchase of the used, in place xerox equipment would permit a substantial monetary savings while still getting equipment which had been proven satisfactory to do the job. Nonetheless, if new equipment from either Xerox or Kodak would have done the job required and still saved money, that would have been the route taken. This was not the case, however. According to Mr. Vick, the request to go sole source on this procurement was prompted by a desire to take advantage of the Xerox proposal of late September 1984 which, it was felt, would result in a substantial dollar savings for the State while still providing equipment which was satisfactory for the task required. DHRS maintains an open door policy toward vendors to encourage them to come in and attempt to sell their product. Mr. Cox has dealt with Kodak on several occasions in the past but never in the area of copying equipment. At the time in question, there was nothing at all to preclude Kodak from coming in with their own offers. DHRS officials do not deny that they wanted to accept Xerox's proposal. Offers by several other vendors had been turned down in the past, but this one looked so good and appeared to have the promise of substantial dollar savings to the State, that a request was made to DGS to go single source procurement so that this proposal could be accepted. However, once this request was turned down, an Invitation for Bids was sent out to competing vendors and while the terms paralleled those offered by Xerox and it was obvious that Xerox's bid would comply with them, there was nothing in the procedure on DHRS' part that would preclude Kodak from offering the same terms. The officials at DHRS had no way of knowing that Kodak's internal policies would not permit the meeting of the same terms as to free maintenance and trade in allowance. If Kodak had been willing to meet those terms, it could thereafter have battled Xerox head to head on the one issue where they could compete - price. DHRS also admits that generally, it is reluctant to make outright purchases of technical equipment, preferring to lease as was done here for several years, because of the changing state of the art. It is for that reason that the invitation to bid specified used equipment here to keep costs down and to allow upgrading in the reasonably near future. To go even further, Mr. Cox admitted that while the bid was open to others, it was aimed at getting the Xerox proposal which would save a total of $76,000.00 on this purchase and trade-in. Considering the evidence in its totality, it is clear that the officials at DHRS were attempting to save state funds in this procurement. Their method of handling this procurement lacks finesse, perhaps, but cannot be said to be ill-motivated, arbitrary, capricious, or unreasonable.
The Issue against Petitioner by terminating him due to his handicap
Findings Of Fact This cause arose because Petitioner wanted to return to work in Respondent-Employer's grocery store after having been off work due to epileptic seizures and treatment therefor in March, 1995. Respondent terminated Petitioner effective April 10, 1995. Petitioner claims to be the victim of an unfair employment practice on the basis of handicap. At least from March 22, 1995 and continuing through the date of formal hearing, Petitioner has suffered from epileptic seizures up to twice a day. During the entire period, Petitioner has remained on medication (Dilantin) for control of these seizures. At formal hearing, Petitioner complained that he must take Dilantin every 4-5 hours, but it sometimes is not effective to control his seizures after 3-4 hours. It is therefore concluded that his epileptic seizures are not under control. Petitioner was hired by Respondent before his handicap manifested itself and was a good worker during the time employed. On December 21, 1993, Respondent hired Petitioner to work as a Meat Cutter. His hours of employment were typically noon to 9:00 or 10:00 p.m., although apparently he worked one shift a week from 7:00 a.m. to 4:00 p.m. Between the hours of 4:00 p.m. and closing, Petitioner was the only Meat Cutter on duty in his grocery store. Meat Cutters are highly skilled tradesmen who are required to be knowledgeable about cuts of meat. In the Respondent's grocery stores they are paid at the highest rate for non-supervisory personnel. Petitioner worked primarily as a part-time apprentice Meat Cutter until July 23, 1994, when his pay rate increased and he was designated a full-time employee. At all times material, Calvin Jenkins was Petitioner's immediate supervisor. As Market Manager, Mr. Jenkins was responsible for overseeing the Meat Department and its employees. At all times material, Ron Funderburk, Store Director, had ultimate supervisory, hiring and firing responsibilities and authority for the grocery store. Respondent qualifies as an "employer" under Chapter 760, Florida Statutes. On or about March 22, 1995, Petitioner experienced a seizure while asleep at home. Thereafter, Petitioner received medical treatment, and Dr. Ayala placed him on Dilantin to control his seizures. Dr. Ayala remains Petitioner's primary treating physician. As a result of his medical condition, Petitioner was totally unable to work for a few weeks immediately after he experienced his first seizure. Respondent gave Petitioner time off and did not fill his position as a Meat Cutter, hoping that he would be able to return to work. Twice during March and April 1995, Petitioner had a friend deliver to Ron Funderburk and/or Calvin Jenkins Dr. Ayala's written restrictions to the affect that Petitioner should not work as a Meat Cutter while on medication and Dr. Ayala's recommendation that Petitioner be allowed to work as a Meat Wrapper. In making that recommendation, Dr. Ayala was unaware of what wrapping meat entails. He has since altered that recommendation. When deposed on July 16, 1996, he testified that he had not had enough information to recommend that Petitioner be hired back as a Meat Wrapper. As of that date, Dr. Ayala felt Petitioner should not be around heavy machinery that poses a risk to him until medication renders him seizure-free for six months. At all times material, and presently, the essential functions and/or bona fide occupational duties of the Employer's Meat Cutters included unloading trucks of meat; slicing, grinding, and cutting meat; "working the case" (arranging the wrapped case goods), servicing customers, and cleaning up. The Employer's Meat Cutters have been, and are, responsible for cutting all the meat in the store and for wrapping most of the meat. They must be able to use and were/are required to use knives, saws, slicers, meat grinders and meat wrapping machines. The saw which is most used to cut meat consists of a "band saw". It relies on a circular blade to cut any bones in the meat. The slicer consists of a saw with a 14-inch circular blade. A Meat Cutter was/is also required to use a meat grinder. Any of these machines would be dangerous to an individual, such as Petitioner, who may be rendered unconscious due to a seizure. Digits, and even limbs, can be automatically drawn into these apparatuses and/or severed. In March or April 1995, when presented with Petitioner's medical restrictions, Ron Funderburk and Calvin Jenkins concluded that Petitioner could no longer function as a Meat Cutter. By Request for Admission 6, Petitioner admitted that, "due to his physician's medical restriction, from April 1995 to the present, Petitioner was not qualified to perform the essential functions of a Meat Cutter." Further, Petitioner testified that he has not been "capable of cutting anything" since March 22, 1995 and that he never told Mr. Funderburk that he wanted to return to his job as a Meat Cutter. Petitioner applied for Social Security Supplemental Security Income benefits on March 13, 1996. On his application, Petitioner claimed he had been disabled since March 1, 1995. He also said that his condition caused him to stop working as of April 10, 1995. Finally, Petitioner stated that he could not use any machinery, knives or work around machines. Several times, he has informed the Social Security Administration that he cannot use knives, or any machines, including a lawn mower. He also stated he cannot walk much, shop, cook, socialize, and/or perform housework, and that his condition is worsening. It is abundantly clear that Petitioner consistently has not been qualified to perform the bona fide qualifications of the Meat Cutter position since March 22, 1995. In March or April 1995, Mr. Funderburk offered to transfer Petitioner to another position. Petitioner responded by asking if the alternative position would pay him at the same rate as he had been earning as a Meat Cutter. The only position available at that time was a Clerk position which paid less than a Meat Cutter position even with no loss of Petitioner's earned seniority. Mr. Funderburk is clear and credible that Petitioner never told him Petitioner would take the Clerk's job at less pay. Also, it is abundantly clear Petitioner did not report to work in that category, and his testimony generally suggests that he had not wanted to work for the lesser salary. Respondent would have had to create a position to employ Petitioner as a cleanup person, but cleanup personnel also are paid less than a Meat Cutter. In hindsight, Petitioner suggested that regardless of whether he ever actually asked Mr. Funderburk for a specific position or not, it was the Employer's duty to search out a job of comparable pay scale which Petitioner could do, such as working in the service case or deli. However, in March and April 1995 there was no job position limited to working in the service case. Petitioner also believes now that he should have been transferred into the position of Stocker or Meat Wrapper, but each of those positions also made less than a Meat Cutter. Also, there is no credible evidence that Petitioner actually requested any accommodation of his handicap and only his self-serving testimony that he requested that he be designated a Meat Wrapper and paid at the higher salary he had previously been paid as a Meat Cutter. It was initially Petitioner's contention that while employed as a Meat Cutter prior to his seizures, he actually had never been required to cut meat. Therefore, Petitioner reasoned, the Employer was obligated to "accommodate" his handicap by paying him at the rate for a Meat Cutter even if, after his seizures began, he was able only to clean up the store and perform the duties of a Meat Wrapper. Contrary to his initial contention, however, Petitioner eventually testified that while employed by this Employer as a Meat Cutter prior to his first seizure he had, indeed, cut meat, mostly chicken; had sliced meat; had ground hamburger; and one day a week, he had to use the automatic wrapping machine. Also, Petitioner failed to credibly show that he had never cut other types of meat before he began to have seizures. In making this finding of fact, every effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth. To that end, Petitioner has been given the benefit of the doubt, but where conflicts exist, the credibility issue has been resolved against Petitioner for the following reasons: Mr. Funderburk hired Petitioner based in part on Petitioner's vocational training and experience as a Meat Cutter. Petitioner's candor and demeanor while testifying that he had never cut meat other than chicken was not that of a wholly credible witness, and he frequently contradicted this statement. Petitioner has made myriad prior statements which are inconsistent and, indeed, contradictory to his denial of cutting meat. Petitioner had filled out a workers' compensation accident report for Respondent on July 21, 1994 asserting that he cut himself with a knife in the course and scope of cutting meat while employed by Respondent-Employer as a Meat Cutter. His supervisor, Mr. Jenkins, observed Petitioner cutting and grinding meat and using all of the equipment associated with the Meat Cutter position. Petitioner informed the federal Social Security Administration that he had used "cutting saw, meat department, knife, grinder for meat, buffing machine, meat slicer, chain saw, Meat Cutter at Harvey's, Bruno's, using all of these tools while there [sic]" Moreover, to believe Petitioner that he never had to cut any meat except chicken during his employment from December 1993 through February 1995 when he was the only Meat Cutter on duty in Respondent's store from 4:00 p.m. to closing would also require believing that in all that period of time no customer every requested a special cut of meat after 4:00 p.m. Common sense precludes finding such a representation by Petitioner to be credible. More to the point is whether Petitioner asked for a Meat Wrapper position, was qualified to wrap meat, or could be accommodated by being assigned solely as a Meat Wrapper. The credible evidence clearly and convincingly demonstrated that at all times material, and presently, Respondent employs several Meat Cutters and only one Meat Wrapper, Ms. Toni Albert. Ms. Albert has occupied this sole Meat Wrapper position since 1993. The sole Meat Wrapper position has never been vacant. Therefore, it was never available to Petitioner. Respondent has phased the Meat Wrapper position out of most of its stores, and has made the corporate decision that if Ms. Albert retires or quits, she will not be replaced and her position of Meat Wrapper will be eliminated. At all times material, and presently, Respondent's Meat Cutters could/can, and did/do wrap meat as well as cut it. Respondent-Employer's Meat Cutters are paid at a higher scale than is its sole Meat Wrapper. Petitioner was earning $7.50 per hour as a Meat Cutter at night when he was let go. If the Employer had made Petitioner a Meat Wrapper with his seniority in April 1995, Petitioner would have earned only $5.75 per hour, and would have had to consistently work the 7:00 a.m. to 4:00 p.m. shift. A bona fide qualification of both Respondent's Meat Cutters and of its sole Meat Wrapper, Ms. Albert, requires them to be able to use Respondent's machinery to wrap meat. One of Respondent's machines which wraps meat is an automatic meat wrapper. This machine has moving parts and conveyer wheels or rollers. In the vernacular, it qualifies as "heavy machinery," which is precluded by Petitioner's use of medication and frequent seizures. (See Finding of Fact 10) It is capable of drawing Petitioner's hands into it if he fell unconscious. (See Finding of Fact 2) Although the automatic meat wrapper has a safety device, it requires pushing a button to activate it. The device would not activate just because an employee, such as Petitioner, suddenly became unconscious. The automatic meat wrapper is located in the Meat Department as are all the other Meat Cutter tools and machinery which are also dangerous to Petitioner. (See Finding of Fact 16) Therefore, Petitioner has not demonstrated that he has been capable and qualified to perform the bona fide occupational qualifications of a Meat Cutter or a Meat Wrapper at any time since March 22, 1995. Nor has Petitioner clearly stated that he would accept the Meat Wrapper's reduced pay rate. At formal hearing and by his post-hearing proposal, Petitioner expressed himself as not wanting his Meat Cutter job back but wanting some money because of the time he has been off work. On his original December 2, 1993 application for employment by Respondent, Petitioner represented that he had never been convicted of a felony. In fact, Petitioner has been convicted of at least one felony. Petitioner knew that he had lied on his employment application, but he tried to justify his answer because Respondent did not check his background. Respondent first became aware that Petitioner had falsified his application during the Petitioner's deposition on January 9, 1996. While Respondent sometimes hires persons who admit felony convictions, Respondent maintains a policy of terminating employees who lie on their employment applications. Accordingly, Petitioner would not qualify as a "rehire" even if he were now able to return to work for the Respondent-Employer in any capacity. Within a month of Petitioner's separation from Respondent-Employer he began working for Harvey's, but he only worked one month. Rather than search out other employment so as to mitigate his salary loss, Petitioner relied on unemployment compensation and sought federal Social Security Supplemental Security Income benefits. It was not until after Petitioner applied for these benefits, which were denied, that Petitioner decided to "try to go back to work." At the time of formal hearing, Petitioner was employed doing custodial work. The record does not reflect what functions he was actually performing or his rate of pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Relations Commission enter a final order dismissing the Petition for Relief and its underlying claim/complaint of discrimination by an unfair employment practice. RECOMMENDED this 6th day of June, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997. COPIES FURNISHED: Deborah A. Mattison, Esquire Robert F. Childs, Esquire GORDON, SILBERMAN, WIGGINS & CHILDS, P.A. 1400 South Trust Tower Birmingham, AL 35203 Marvin Young 2114 Saxon Street Tallahassee, FL 32304 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Tallahassee, FL 32303 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Tallahassee, FL 32303
The Issue The purpose of this hearing is to determine whether Permit No. LSNR-15-00004, for the removal of inactive burrowing owl nests, should be issued as proposed by the Florida Fish and Wildlife Conservation Commission (Commission).
Findings Of Fact Petitioner, Lise Bauman was, at all times pertinent to this proceeding, a resident of Marco Island. She is employed in the tourism industry as a bartender on a dinner cruise boat. Respondent Marco River Marina/Rose Marina, owns and operates a marina on Marco Island, Florida, which includes a dry-storage boat facility. The marina is located at 951 Bald Eagle Drive, Marco Island, Florida. A vacant lot at 865 Magnolia Court, Marco Island, Florida, is contiguous to the marina. Both parcels are under common ownership. The Florida Fish and Wildlife Conservation Commission is an agency of the state, created pursuant to Article IV, section 9 of the Florida Constitution, to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” The burrowing owl (Athene cunicularia) has been designated by the Commission as a species of special concern. The burrowing owl is not a federally-designated endangered or threatened species. Burrowing owls are, as their name implies, ground- nesting owls that excavate burrows in open, vacant areas. Burrows can extend up to eight feet in length. Most burrows have a single entrance/exit. Burrowing owls range throughout all 67 Florida counties. Their numbers have dwindled in the Panhandle and North Central Florida regions, and their population remains heaviest in South Florida. On Marco Island, rights-of-way, parks, and vacant lots provide habitat for nesting owls. As vacant lots are constructed upon, habitat options on Marco Island are reduced. Nonetheless, despite significant construction and development on Marco Island over the past 15 years, active owl burrows on Marco Island have increased in number during that period from roughly 30 to between 100 and 150. The increase is largely the result of compliance with Commission conservation rules, education of property owners and developers, and identification and marking of burrow sites to protect from inadvertent destruction. Burrowing owls are quick to relocate if their burrows are disturbed or become unsuitable. If there are suitable nesting sites nearby -- generally any open, treeless area with well-drained soils -- burrowing owls will not hesitate to move and construct new burrows. The normal breeding season for burrowing owls in the area runs from February 15 through July 10, although weather and other conditions may result in breeding before or after the normal season. However, Ms. Richie, who had surveyed burrowing owl sites on Marco Island for the previous 15 years, never observed owl chicks or fledglings in the months of December or January. In order to give burrowing owls that are displaced as the result of a “take” permit time to relocate, permitting is typically done before breeding season starts. Nonetheless, the Commission typically requires applicants to provide a report from an environmental consultant to confirm the status of burrows on a parcel slated for development. If the report reveals that burrows contain active nests, the proposed activities will not be permitted. The parcel at 865 Magnolia Court was, at the time the Permit application was filed, an undeveloped grass lot. It was mowed regularly, and had no mid-story vegetation. The soil on the property is regarded as disturbed or urban soil. Burrowing owls were present at 865 Magnolia Court for the last nine years. The lot had two burrowing owl burrow areas which had been individually marked by placing PVC pipes at the corners, with nylon cords to “enclose” each protected area. Each of the marked areas contained two burrows in close proximity. Thus, although there were two defined areas, there were four individual burrows. Rose Marina is engaged in a marina renovation project, part of which involves the reconstruction of its dry-storage building at 951 Bald Eagle Drive. During the period of renovation, boats stored in the dry-storage building will have to be temporarily stored at a different location. In order for Rose Marina to maintain its customers and earn income to remain in business, the boats must be stored on its property, rather than sent to other facilities or locations. It was determined that the most appropriate place for the temporary boat storage was the contiguous lot at 865 Magnolia Court. Prior to making application for the Permit, Mr. High contacted Ms. Richie to discuss the owl burrows on the 865 Magnolia Court lot. Ms. Richie was familiar with the burrows on the property, having originally marked them nine years previously. She is well aware of the physical features and animal behaviors that are indicative of an active nesting burrow. As part of their initial discussion, Mr. High and Ms. Richie discussed the possibility of altering the proposed boat storage area to avoid the burrows. However, due to the massive nature of the project and the location of the burrows in the center of the property, avoidance was determined to be impractical. Ms. Richie inspected the property on November 5, 2014, to assess whether the burrows were active or inactive. She knew from her regular monitoring of the property that the burrows had not been used for nesting during the 2013 and 2014 breeding seasons. At the time of Ms. Richie’s inspection, the burrow areas were inhabited by a single adult owl. The owl exhibited no breeding behavior. Male owls will “decorate” the mound of a burrow with feathers, vegetation, bits of trash, and other materials designed to attract the attention of females interested in courtship, and offer some degree of camouflage for an active nesting burrow. The single owl on the property had not decorated the burrows to suggest that they were active. When nests are active, male owls will spread their wings and offer vocal protestations if approached. The owl at 865 Magnolia Court exhibited no such behavior. Paired owls usually sit together. Even if a female owl is on a nest in an active burrow, she will frequently peek out to see what is occurring. Ms. Richie saw no evidence of another owl at the burrow areas. As a result of her inspection, Ms. Richie provided Rose Marine with a short report, which included her conclusion that “this burrow, under State definitions is considered ‘inactive.’” The on-line application for the Permit was submitted on November 6, 2014. The application identified the applicant as Marco River Marina. The project address was given as 951 Bald Eagle Drive, Marco Island, Florida, which is that of the marina itself. However, the application provided the project’s township/section/range, latitude and longitude coordinates, and Collier County parcel ID number. Those identifying numbers describe the parcel at 865 Magnolia Court. Given the fact that 951 Bald Eagle Drive and 865 Magnolia Court are contiguous lots, many, including Ms. Richie, regard them as a single parcel and refer to them collectively as Rose Marina. The application for the Permit included a ground-level photograph of the property, and an aerial photograph of the property with depictions of the burrow areas to be affected and the proposed gravel path designed to serve the boat storage area. Furthermore, Ms. Richie’s report was clear as to location of the burrow areas proposed for removal. Thus, the Commission understood which parcel was the subject of the authorization. Although the application incorrectly gave the project street address as 951 Bald Eagle Drive, instead of 865 Magnolia Court, there was no evidence that anyone was confused as to the location of the burrows to be affected. Thus, the street address error in the Permit is of no substantive effect and does not form a basis for denial. The property contained two marked and staked owl burrow areas, each of which contained two burrows. Nonetheless, the Permit authorized the destruction of the “[t]wo (2) inactive burrowing owl nest burrow(s).” The on-line application form has no field for identifying the number of burrows, but required only information as to the number of adult birds, eggs, and flightless chicks. Rose Marina’s information as to those application fields was accurate. The application included a map which depicted the burrow areas in the correct location. Having a single reference point is not uncommon for burrow areas with more than one burrow. In that regard, when mapping burrows for the City of Marco Island, Ms. Richie would “just put one dot for one burrow area.” The application included a high-quality color photograph of the two marked and staked burrow areas, and a marked aerial photograph of the parcel that accurately depicted the areas. Ms. Richie’s report noted the existence of four individual burrows, only two of which she described as well maintained. The error in the Permit as to the number of burrows appears to be one of a misunderstanding of the distinction between the burrows and the burrow areas. There was clearly no intent to mislead the Commission or anyone else as to the number of burrows on the property. Given that all of the burrows were inactive, whether the number of affected burrows was two or four would not have made a difference in the Commission’s decision to issue the Permit. Thus, the error in the Permit as to the number of burrows is of no substantive effect and does not form a basis for denial. The Permit described the inactive burrow destruction as being done in association with “seawall renovations,” rather than for a gravel path and boat storage. The error was a scrivener’s error on the part of the Commission. The application and supporting documentation, including the aerial photograph and emails from Mr. High to the Commission’s protected species permitting office, clearly described the project as a temporary boat storage lot. Upon becoming aware of the scrivener’s error, and weeks before the filing of the petition, Ms. Williams struck the term “seawall renovations,” and re-issued the Permit with the following errata: “FWC oversight; approved activity was construction of gravel walkway for temporary storage of boats. Angela Williams 2/17/2015.” The error had no effect on the issuance of the Permit. Thus, the error in the uncorrected Permit as to the nature of the project is of no substantive effect, and does not form a basis for denial. Ms. Richie monitored the 865 Magnolia Court burrows on a weekly basis from her November 2014, inspection through January 2015. She observed no physical or behavioral evidence of active nesting, saw nothing to suggest that the burrows contained eggs or flightless young, and was confident that only a single adult owl inhabited the two burrow areas. As a result, she concluded that the burrows remained inactive up through the date of their destruction. Her testimony was persuasive, and is credited. The Permit was issued and became effective on January 9, 2015. The destruction of the burrows was done on January 15 and 16, 2015. The act was accomplished by means of a hand shovel. Mr. High indicated that the excavation was done slowly and carefully so as to minimize the risk if an owl was in any of the burrows. No owls, nests, or eggs were encountered in the burrows. Rose Marina personnel fashioned a wooden rod with a cloth duct-taped to the end to probe the burrow before digging down with a shovel, and to flush owls away from the site while the excavation was ongoing. That method was determined to limit the potential for injury to any owls. No owls were encountered in the burrows. At no time during the process of excavation did an owl retreat into a burrow. Thus, there was no need to insert a burrow scope or flexible tubing into the burrow to flush an owl from the burrow. After the completion of the burrow removal, a fence was constructed around the perimeter of the area used to store boats, and the gravel driveway through the middle of the area was put in. The gravel driveway covers the area previously occupied by the burrows. At the conclusion of the marina renovation activities, the lot at 865 Magnolia Court will be restored to its previous condition. The preponderance of the competent, substantial evidence presented at the hearing provides reasonable assurance that the activities authorized by the Permit will have no impact on the owl that was present at the burrow areas in November 2014, and will not be detrimental to the survival potential of the species. Petitioner observed the permitted activity at some unspecified time after its commencement. On February 9, 2015, after having made a request for public records, Petitioner received a copy of the Permit. The Permit included a notice of rights which provided, among other information, that “[a] person seeking a hearing on FWC’s action shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Petitioner’s petition was dated March 1, 2015. The date of its receipt by the Commission is unknown, since it bears no form of date-stamp or acknowledgement, nor is there competent, substantial, non- hearsay evidence in the record to establish the date of receipt. Being employed in the tourism industry, Petitioner understands that tourists enjoy seeing and photographing burrowing owls, which enhances Marco Island’s reputation as a desirable destination. Petitioner’s interest in the burrowing owls is related to her desire to ensure that tourists continue to come to Marco Island, thus sustaining her livelihood. Petitioner expressed no more than a general “interest in wildlife,” and engaged in no activities designed to protect or perpetuate the burrowing owl species. Petitioner raised issues regarding approval by the City of Marco Island of a temporary-use permit for Rose Marina to use the vacant lot at 865 Magnolia Court for boat storage. There was no dispute that the City approved the temporary-use permit, with the dispute being whether the burrow removal under the Commission Permit was done prior to the City’s approval of 865 Magnolia Court as a boat storage area. Approval by the City is not a condition for issuance of the Permit and is not before the undersigned for disposition. Thus, the City of Marco Island temporary-use permit is not relevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving the issuance of Permit No. LSNR-15-00004 to Respondent, Marco River Marina/Rose Marina. DONE AND ENTERED this 16th day of October, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2015. COPIES FURNISHED: Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Lise Jay Bauman Unit V-8 167 North Collier Boulevard Marco Island, Florida 34145 (eServed) Daniel High 951 Bald Eagle Drive Marco Island, Florida 34145 Eugene Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
The Issue The issue for disposition in this case is whether proposed Florida Administrative Code Rule 61D-6.0052 (Proposed Rule) is an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is a Florida for-profit corporation operating at the Palm Beach Kennel Club (PBKC) in West Palm Beach, Florida. Petitioner’s members are owners of greyhounds that are raced at the PBKC. Of the 12 greyhound kennels that operate at PBKC, nine are current members of Petitioner. Petitioner’s members each hold licenses issued by the Division pursuant to chapter 550, Florida Statutes. Some of the PBKC kennel owners are themselves licensed greyhound trainers, and some employ licensed trainers. Petitioner’s Articles of Incorporation establish its purposes as including the promotion of “the welfare and care of greyhounds, . . . including, but not limited to, . . . promoting fair regulatory treatment of the greyhound industry.” The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. The Proposed Rule The full text of the Proposed Rule is as follows: 61D-6.0052 Procedures for Collecting Samples from Racing Greyhounds Designating Greyhounds for Sampling: Any greyhound the judges, division, track veterinarian, or authorized division representatives designate, shall be sent immediately prior to the race to the detention enclosure for examination by an authorized representative of the division for the taking of urine and/or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. When possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance. Additional greyhounds may also be sampled if designated by the judges, division, track veterinarian, or authorized division representatives. Collection of Samples: Urine and/or other samples shall be collected by an authorized representative of the division in an unused sample container supplied by the division, or its agent. Authorized representatives of the division shall wear unused gloves supplied by the division, or its agent, during sample collection until the sample container is sealed with its lid. Authorized representatives of the division shall use a sample card with a unique identifier to record the date of sample collection and the identification tattoo, microchip or name of the greyhound sampled or attempted to be sampled. The owner, trainer of record, or other authorized person is permitted to witness when the sample is collected from their greyhound. Failure of an owner, trainer of record or other authorized person to witness and/or sign the sample card shall not preclude the division from proceeding with sample analysis. Sealing and Labeling of Samples: As soon as possible after a sample is collected, the sample container shall be sealed with its lid. The sample container shall be labeled with the sample card’s unique identifier. Evidence tape shall be placed over both the sample container and lid on at least two sides. The authorized representative of the division that sealed the sample container shall initial the evidence tape on the sample container. Storing and Shipping of Samples: The samples shall be stored in a lockable freezer or container in a restricted area accessible by only authorized representatives of the division until the time of shipment. Upon the completion of packing the samples for shipment, the shipping container shall be locked. All appropriate forms for shipment shall be completed and included with the shipment to ensure correct delivery and identification of the contents. The samples shall be shipped to the laboratory under contract with the division for testing of the samples via the laboratory’s contracted common carrier. Authority of the Division: The division investigator or other authorized representative is authorized to confiscate any legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials which are found on the grounds of greyhound race tracks and kennel compounds or in the possession of any person participating in or connected with greyhound racing, including veterinarians and trainers, and which are suspected of containing improper legend or proprietary drugs, medications, medicinal compounds (natural or synthetic) or other materials which are illegal or impermissible under these rules. Such legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials shall be delivered to the laboratory under contract with the division for analysis. The division is authorized to confiscate any evidence that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. It is a violation of these rules for a licensee to threaten to interfere, actually interfere or prevent the taking of urine, blood, saliva or other samples authorized by Chapter 550, F.S. For such a violation, the division may impose any disciplinary penalties authorized by Chapter 550, F.S., or the rules promulgated thereunder. Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12), (13) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 FS. History–New . Issues for Disposition Section 120.56(2)(a) provides that “the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.” The “objections raised” as identified in the Joint Pre- hearing Stipulation are those that remain for disposition in this proceeding, with issues not preserved having been waived. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). As set forth in the recitation of “Petitioner’s Position,” the following issues are at issue: The proposed rule refers to urine and/or other samples in its text, yet only contains procedures for urine collection; The proposed rule fails to adequately detail necessary chain of custody procedures for sampling racing greyhounds; The proposed rule ignores basic scientific principles as to contamination; The proposed rule ignores basic scientific principles as to the timing of sampling; The proposed rule ignores basic scientific principles as to the temperature of a sample; The proposed rule fails to provide trainers and owners of an opportunity to witness their greyhounds' sampling; The proposed rule grants too much discretion to Respondent; Respondent failed to follow the applicable rulemaking procedures set forth in chapter 120; The proposed rule does not limit its application to urine; Stipulated Facts The following facts were stipulated by the parties: It is possible that a racing greyhound could become exposed to environmental substances during the time between the trainer relinquishing it at the track and the sampling. The reason that racing greyhounds are tattooed is for identification purposes. It is important to prevent contamination of a racing greyhound's sample. It is important to preserve the integrity of a racing greyhound's sample. The Proposed Rule does not require racing greyhound samples to be stored frozen. However, subsection (4)(a) of the Proposed Rule requires that the samples are stored in a lockable freezer or container. The Proposed Rule does not require that the racing greyhound samples be kept refrigerated. However, subsection (4)(a) of the Proposed Rule requires that samples be stored in a lockable freezer or container. The Proposed Rule does not contain any provisions for the drawing of blood, "other specimens," or other fluids from the racing greyhound. The Proposed Rule does not describe how all the individuals involved in the chain of custody of a racing greyhound sample record their involvement. The Proposed Rule contains a section entitled "Sealing and Labeling of Samples." The Proposed Rule does not describe the chain of custody for the taking of "other specimens" from the racing greyhound. The Proposed Rule does not describe the chain of custody procedures associated with materials confiscated under paragraph five of the Proposed Rule. Respondent published its Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. (Notice of Development), on January 22, 2018. Respondent published its Notice of Proposed Rule 61D- 6.0052, F.A.C. (Notice of Proposed Rule), on January 29, 2018. Respondent's Notice of Proposed Rule 61D-6.0052, F.A.C., indicated it was approved by the agency head, Jonathan Zachem, on January 26, 2018, a mere [four] days after publication of Respondent's Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. On February 6, 2018, a rule development workshop was requested for Proposed Rule 61D-6.0052, F.A.C. Respondent did not hold a rule development workshop for Proposed Rule 61D-6.0052, F.A.C. Respondent did not provide an explanation in writing as to why a workshop was unnecessary for Proposed Rule 61D-6.0052, F.A.C., other than Bryan A. Barber's letter of February 13, 2018. Facts Adduced at Hearing The purpose and effect of the Notice of Development was “to further clarify and describe the procedures performed by the Division in collecting samples from greyhounds and to create a rule specific to the greyhound sample collection. The Notice of Proposed Rule did not contain a statement of estimated regulatory costs imposed on small businesses. On February 6, 2018, Petitioner, through its representative, sent a letter to the Division requesting a rule development workshop. On February 13, 2018, the Division noted that the “rule development phase” ended with the publication of the Notice of Proposed Rule, and the request for a workshop was, therefore, untimely. There is no evidence that anyone provided the Division with information regarding a statement of estimated regulatory costs, or provided the Division with a proposal for a lower cost regulatory alternative. No one requested that a public hearing be held on the Proposed Rule. Racing greyhounds are delivered to the track by their owners or trainers prior to the commencement of their race card. Greyhounds racing during the matinee card are delivered at one time, and greyhounds racing during the evening card are delivered at a later time. The greyhounds are all weighed in about 60 to 90 minutes prior to the first race, regardless of the race in which a particular greyhound is scheduled to appear. After weigh-in, the greyhounds are handed over to the “lead-outs,” who are track employees, and taken to the ginny pit. Each greyhound is then placed in a numbered cage designating its race and position, and held there until its race is scheduled to commence. From the time an animal is given over to the lead-outs until its race is over, they are out of the control and sight of the owners and trainers. For greyhounds racing in the last race of a card, that period can be well in excess of four hours. Prior to each race, the race judge, Division, track veterinarian, or “authorized division representative” designates the greyhounds to be tested for that race. The process was not described, other than as described in the rule that “[w]hen possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance.” Mr. Ehrhardt testified that “ideally it’s blind and that you just pick one at random,” and that dogs from separate kennels be selected “to ensure that no one is singled out.” However, the Proposed Rule contains no criteria for the selection of an animal other than its being in the race. Even a requirement that the selection be random, and a mandatory selection of different kennels be made “when possible,” is sufficient to preclude an unfettered exercise of discretion in the selection of the greyhound. As it is, the selection of both dogs and kennels is completely within the discretion of the Division. Upon selection, the greyhounds are led to an open area to relieve themselves. At the Orange Park Kennel Club, the area is a restricted access grass and sand area surrounded by a chain link fence. There was no evidence as to other tracks, but there is little to suggest that the areas at other tracks are dissimilar. The process of collecting the sample involves watching the dog for a sign that it is ready to urinate, and then holding a plastic cup at the end of a stick, an “armed doohickey” as described by Mr. Ehrhardt, under the dog until it produces a sample. The sampler wears fresh gloves and uses an unused cup. When the sample is collected, the sampler places the lid on the container, labels the container, and places evidence tape “over both the sample container and lid on at least two sides.” After the sample cup is capped, labeled, and sealed, it is placed in a “lockable freezer or container in a restricted area.” Mr. Ehrhardt indicated that it was the Division’s intent that the freezer or container should be locked at all times that it is not being accessed to place samples in it, and that it should not be left unlocked. However, the plain language of the rule suggests otherwise. The lockable container is to be in a restricted area, but is only required to be locked “[u]pon completion of the packing of the samples for shipment.” Dr. Tobin testified that samples must be kept frozen or, at a minimum, refrigerated. Mr. Ehrhardt testified that once a sample is collected, it goes “straight to the freezer,” suggesting that freezing is the preferred method of storage. Failure to do so can result in degradation of the sample, bacterial growth, and, in certain cases, breakdown of substances into metabolites that would more closely mimic a prohibited substance in a dog’s urine. Petitioner argued that the timing of the sampling is problematic for another reason, other than the holding period for the greyhounds. Many owners and trainers have more than one dog racing during a card. The ginny pit and the finish line are at different ends of the track. Therefore, a trainer or owner may be collecting their dog(s) at the conclusion of a race at the same time the pre-race sample is being taken for the next race, making observation of the sampling difficult from a practical perspective. However, both Mr. Agganis and Mr. Chin acknowledged that there was nothing to directly prevent an owner or trainer from observing the sampling. Furthermore, there is nothing to prevent the owner or trainer, or even Petitioner’s members collectively, from having an employee or agent witness the sampling on their behalf, since the rule allows “[t]he owner, trainer of record, or other authorized person” to witness the sampling. In no fewer than 10 places in the Proposed Rule, actions are authorized to be taken by an “authorized representative” of the Division, or an “other authorized person.” The Proposed Rule does not identify who those representatives or persons might be, or how they may come to be authorized. Mr. Ehrhardt testified that the purpose of the less definitive description was “to figure out a way to make the rule flexible,” to meet the possibility that a “job title is going to change.” During Mr. Ehrhardt’s visit to the Orange Park greyhound racing facility, he was allowed into the restricted ginny pit area by “authorized personnel from the division,” who he described as “veterinarian assistants, chief inspector, investigators, people like that.” Petitioner objected to the lack of specificity because it provided no assurances that these individuals are competent, or held to any particular standard.
