The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a general contractor, holding license CGC1251933 issued by the Petitioner. At all times material to this case, the Respondent was the qualifying contractor for "Signature Built Construction, Inc.," located at 1349 Admiral Woodson Lane, Clearwater, Florida, 33755. In May 2008, a complaint was filed against David Helms and "Signature Built by David Helms, Inc.," related to alleged problems between Mr. Helms and purchasers of a dwelling (the Wolbert residence). The Respondent is not a qualifying contractor for Signature Built by David Helms, Inc. Neither Mr. Helms nor Signature Built by David Helms, Inc., is a licensed contractor. Signature Built Construction, Inc., and Signature Built by David Helms, Inc., are two separate Florida corporations. There is no credible evidence that the two corporations have entered into any formal joint venture agreement or have become legally qualified to enter into joint construction contracts or to obtain joint building permits. The specific allegations of the complaint between the purchasers of the Wolbert residence and Mr. Helms are immaterial to this proceeding. The first page of the "Building and Purchase Agreement" for construction of the Wolbert residence identifies Signature Built by David Helms, Inc., as the "Builder" or "Seller," but further states as follows: Signature Built Construction, Inc., license numbers CBC1251933/QB32131 is the Contractor/Builder of record for Signature Built by David Helms, Inc. and is joined under this agreement. The Respondent's signature does not appear on the Building and Purchase Agreement. There is no credible evidence that the Respondent was legally bound by the Building and Purchase Agreement. The Administrative Complaint at issue in this proceeding alleges that the Respondent improperly obtained the permit for the Wolbert residence construction project on behalf of Signature Built by David Helms, Inc. The evidence establishes that the Respondent obtained the building permit for construction of the Wolbert residence pursuant to the Building and Purchase Agreement between the purchasers and Signature Built by David Helms, Inc. The Administrative Complaint alleges that the Respondent failed to maintain workers' compensation insurance for the construction of the Wolbert residence and, therefore, committed "fraud or deceit or gross negligence, incompetency or misconduct in the practice of contracting." The evidence fails to establish that the Respondent did not maintain workers' compensation coverage for construction of the Wolbert residence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order determining that the Respondent has committed the violation of statute and code provisions as set forth herein and providing for a fine of $1,000.00 and assessing legal costs. DONE AND ENTERED this 19th day of February, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2009. COPIES FURNISHED: Jason Ester, Esquire Pinellas County Attorney’s Office 315 Court Street, Sixth Floor Clearwater, Florida 33756-5165 Warren J. Knaust, Esquire Knaust & Associates, P.A. 2167 Fifth Avenue, North St. Petersburg, Florida 33713 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 12600 Belcher Road, Suite 102 Largo, Florida 33773
Findings Of Fact From late 1981 to mid-1983, Respondent advertised its meat products in the Pensacola newspaper. These ads offered large quantities of beef for sale on installment plans. The ads contain intentionally confusing messages with the large print suggesting higher quality meat or lower prices than is actually offered. For example, in some of the ads the "special" giving the weight in pounds and price for four payments is immediately adjacent to language such as "plus this free. . . bonus." The description of the "special" is typically placed over or immediately adjacent to a drawing or representation of a steer. A careful reading of the fine print reveals that the "bonus" is actually included within the total weight which at first appears to be the representation of the amount of beef that will be received. The "bonus" consists not of beef, but of other types of meat. In November 1981, Leslie and Bernice Shelby responded to an advertisement offering 200 to 300 pounds of beef for approximately $150. When they attempted to make this purchase, they were dissuaded from doing so by the salesman who told them the advertised meat was of poor quality. He then questioned them as to their income and advised them they could afford better quality meat. They eventually purchased about 500 pounds of meat for 12 monthly installments totalling over $1,600. The Shelby's felt they were hurried into signing an agreement and didn't know what they were getting. Mrs. Shelby was especially upset over a $35 insurance charge that she didn't understand and didn't realize would be included in the contract price.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner find probable cause to initiate judicial proceedings against Hammond eat Market pursuant to Subsection 501.207(1), Florida Statutes (1983). DONE and ENTERED this 16th day of March, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1984. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Ms. Connie Hammond Hammond Meat Market 4708 North "W" Street Pensacola, Florida 32501
The Issue The issue in this case is whether Southwest Land Developers, Inc. is entitled to a general permit for the operation of a construction and demolition debris disposal facility at the site of a previously permitted operation in Port Charlotte.
Findings Of Fact Southwest Land Developers, Inc. (Applicant) is a Florida corporation whose shares are divided equally between Bruce Laishley and Rick Treworgy. Applicant owns and operates a construction and demolition debris disposal (C&D) facility located at 27595 North Jones Loop Road in Punta Gorda. Applicant's shareholders quitclaimed the property to Applicant on March 11, 1993. References to "Applicant" prior to this date are to Applicant's shareholders. Applicant intends to continue operating the facility under a general permit. Applicant filed a Notification of Intent to Use a General Permit for a Construction and Demolition Debris Disposal Facility dated June 5, 1995 (NOI) (Applicant Exhibit Number 1). The NOI describes the facility as a receiving site for construction and demolition materials for recycling and disposal. The NOI states that the facility shall be constructed 28 feet high and covered with two feet of clean soil and grass, thus reaching a total height of 30 feet above existing ground level. By letter dated July 18, 1995, Department of Environmental Protection (DEP) informed Applicant that the agency did not object to Applicant's use of the general permit through July 18, 2000, for the activities described in the NOI. Applicant opened the C&D facility in 1990 under a general permit. Applicant filed on May 30, 1990, a Notification of Intent to Use a General Permit for a Construction and Demolition Debris Solid Waste Facility (1990 NOI) (Petitioner Exhibit Number 5). The 1990 NOI states that the property consists of 19.18 acres, including two acres devoted to waste disposal. (A diagram accompanying the 1990 NOI accurately reports that the actual acreage is 18.18 acres.) The 1990 NOI states that the planned active life of the facility would be two years. The general description of operations contained in the 1990 NOI mentions that two acres would be used for waste disposal. The 1990 NOI describes normal business hours as Monday through Saturday 7:30 am to 5 pm. The 1990 NOI assures that gates would be used to prevent unauthorized dumping, only clean debris and C&D materials would be accepted, unauthorized materials would be transported to the County landfill, and all areas would be covered with two feet of clean soil and sodded or seeded to control erosion. After closure, the 1990 NOI promises that: "All filled areas then will serve as a landscaped berm to provide a privacy barrier to future home owners." Two diagrams accompany the 1990 NOI. The first is a facility illustration depicting a rectangular piece of property with two proposed wooded homesites toward the front (north) facing North Jones Loop Road, an excavation site/lake taking up at least half of the back of the property, and a thin strip designated to receive C&D debris behind (and, for a short distance, alongside the rear of) the excavation site/lake. The first diagram also reveals that a creek (Alligator Creek) crosses the northwest corner of the property. The second diagram accompanying the 1990 NOI is a diagram of the proposed landscape berm running along the south property line behind the lake. The proposed landscape berm is the above-described strip to be formed from C&D debris. The strip is 80 feet wide running along 600 feet at the back of the property and extending about 150 feet to the north at either end. and is tapered with a 2:1 (two feet horizontal to one foot vertical) slope. The second diagram displays all elevations as "ELEV. x," such as the high water table as "ELEV. 15.0'." The elevation of the ground is "ELEV. 21.0'" to "ELEV. 17.0'." The elevation of the top of the C&D mound is "ELEV. 33.0'," which includes two feet of clean fill capping the mound. Thus, the second diagram represents that the C&D mound would extend from the high water table at 15' NGVD to 33' NGVD for an apparent height, from existing ground, of 12-16 feet. The second diagram shows that the elevation of the proposed 8.18-acre lake would be 15 feet NGVD. The second diagram also reveals a 10-foot wide swale running between the strip and the south property line. Prior to authorizing Applicant to proceed under the general permit in 1990, DEP required Applicant to obtain a permit for the management and storage of surface water (MSSW) from the Southwest Florida Water Management District (SWFWMD). Instead, Applicant obtained a letter from SWFWMD stating that the project was exempt from permitting due to the small area of land involved. The SWFWMD exemption letter was erroneously issued, based partly on a confusion between the disposal area, which was below the MSSW threshold of ten acres, and the total, contiguous land under common ownership, which exceeded the 10-acre threshold. SWFWMD personnel also believed at the time that Applicant proposed the "construction of a landscape berm and filling a borrow pit; not a 30 foot high C&D Facility" (Petitioner Exhibit Number 4). In a letter dated July 25, 1995, SWFWMD noted this misconception and determined that the project was not exempt from the requirement of an MSSW permit. In any event, after receiving the SWFWMD exemption letter in 1990, DEP allowed Applicant to construct the C&D facility under the general permit, which remained effective for five years. The first phase of Applicant's activities on the site involved the removal of marketable fill from the rear of the property. Most of the original two-acre fill site was contained in this larger excavation area. During the first phase of construction, no offsite material was used to fill the excavation. Later, during the second phase of Applicant's activities, clean offsite debris, consisting of earth and concrete, was added below the water table. Once the fill reached the elevation of the water table, Applicant began allowing the addition of construction and demolition debris. Applicant first received construction and demolition debris at the end of 1993 or early 1994. Shortly after construction began on the facility, a DEP employee noticed that the facility had exceeded what Applicant had described in the 1990 NOI. Instead of demanding a new NOI, the DEP employee told Applicant to supply an engineering update. By letter to DEP dated September 25, 1991, Applicant provided new drawings, showing, among other things, that all water was to be retained onsite (1991 Update) (Petitioner Exhibit Number 2a). The 1991 Update contains three drawings: a diagram of existing conditions with elevations, a diagram of proposed conditions with elevations, and a cross-section of part of the second diagram. The first diagram attached to the 1991 Update shows a rectangle of land with prevailing elevations ranging from 10-12 feet. Perimeter elevations are 18-22 feet. A large area inside the rectangle contains elevations of 2.3- 5.8 feet. Absent dewatering, this large area would be a lake typically 9-12 feet deep. Compared with information from the 1990 NOI, the first diagram reveals that Applicant had already removed about eight feet of fill from the uplands and 15 feet of fill from the lake, which was somewhat smaller than the ultimate size proposed in the first diagram of the 1990 NOI. The second diagram attached to the 1991 Update confirms substantial departures from the plans contained in the 1990 NOI. The lake is relocated to the north, still south of what was depicted as proposed homesites on the first diagram of the 1990 NOI, and it is reduced from 8.18 acres to 2 acres. The second diagram of the 1991 Update reveals that the area designated to receive C&D debris has been expanded. Formerly ending about 250 feet from the southeast corner of the property, the area now extends to about 600 feet from the southeast corner of the property. The second diagram reveals that the proposed C&D mound as grown by 17 feet since the 1990 NOI. Previously reaching a height of 33' NGVD, the proposed mound in the 1991 Update would reach a height of 50' NGVD. As before, the mound would be capped by two feet of clean fill. From existing ground level, the height of the capped C&D mound has grown from 12 feet high in the 1990 NOI to 29 feet high in the 1991 Update, using the value of 21' NGVD from existing ground level, as set forth in the 1990 NOI. As depicted in the 1991 Update, the fill area is expanded from an 80- foot wide strip covering about two acres to a much larger area. The scale on the diagrams showing existing and proposed conditions is wrong, due to reduction in photocopying. The actual scale is one inch equals about 83 feet, as is obvious in the relationship of the eight-inch south property line to the 662.3 feet it is intended to represent. (The 1199.89-foot measurement on the east property line is inaccurate. It represents the entire east property line, including the area reserved for homesites. See first diagram in 1990 NOI. The area actually depicted on the two diagrams omits the northerly 162 feet of the entire parcel.) The fill area in the second diagram attached to the 1991 Update is 6.67 acres. About 3.5 acres of the fill area would be covered by 33 feet of C&D fill, with the remainder under progressively less fill due to the tapering off of the sides of the roughly 30-foot high mound. The first and second diagrams reveal that the excavation area has consumed 75-100 feet of the area to the north, which had been reserved for wooded homesites under the first diagram of the 1990 NOI. The second diagram depicts a swale running along the entire south perimeter and east and west perimeters north to the beginning of the relocated lake, where the swale empties into the lake. The interior swale mound (closer to the C&D fill) is a constant elevation of 20 feet NGVD. The third diagram attached to the 1991 Update shows that, although the slope of the fill area is reduced to 3:1, the height of C&D debris is increased from 31 feet NGVD to 48 feet NGVD. For stormwater calculations, the third diagram projects that 1/2 inch retention over 18.18 acres would raise the lake level by 4.5 inches, as opposed to merely 1.11 inches for the larger lake shown in the second diagram of the 1990 NOI. Satisfied with the 1991 Update, despite the substantial changes in the proposed project, DEP's representative merely added the three new drawings to the file. The representative did not revisit the general permit under which Applicant was then operating because DEP does not allow the modification of a general permit. The NOI contains a narrative and illustrative description of the C&D facility, as described above, including the 1991 Update. The first diagram of the NOI is the second diagram of the 1991 Update, except for a correction in the bottom elevation of the relocated lake. The second diagram of the NOI is the third diagram of the 1991 Update. The third diagram of the NOI accurately depicts the changes through the 1991 Update. The third diagram reveals that the northeast corner of the facility is within 200 feet of a potable water well. The third diagram, which is entitled a Site & Closure Plan, states that the north line of the permitted area, which does not include the proposed wooded homesites to the north, depicts the "limits of original footprint." Actually, the northeast corner of the permitted part of the property is almost 200 feet farther north than depicted in the first diagram of the 1990 NOI. In the 1990 NOI, the northeast corner of the permitted area was about 450 feet from the northeast corner of the property. In the 1991 Update, assuming that Applicant could unilaterally extend the permitted area without a new notice of intent, the northeast corner of the permitted area cannot be located with any certainty due to the roughness of the hand- drawn perimeter in the first and second diagrams and their failure to disclose the northeast property corner. In the NOI, the northeast corner of the permitted area is less than 400 feet from the northeast corner of the property. Other relevant features of the NOI are assurances in the operational plan that no odor problems "are expected" due to the inert nature of the fill. In the event of objectionable odors, Applicant promises to control them by "covering any decaying materials periodically as required." The NOI summarizes the results of a geotechnical investigation, which was a requirement added since the 1991 Update. The Summary states that the report results lead Applicant to "anticipate the ground will have no problem supporting the facility to a height of 30' above existing ground." The geotechnical report indicates that the purpose of the investigation was to determine the suitability of subsurface soils (to an excavation depth of 15-20 feet) for use as fill. The geotechnical report concludes that the "proposed Quarry Development" is feasible, but recommends excavation no deeper than 15 feet, which would leave a three-foot undisturbed layer between the bottom of the excavation and the top of the confining layer. In a subsequent addendum, the report was amended to recommend excavating no deeper than 18 feet. Since beginning operation in 1990, the C&D facility has received discarded construction materials, as intended. Applicant recycles some of the materials that it receives, such as copper, aluminum, and steel. Two years ago, DEP prohibited C&D facilities from accepting containers, so Applicant placed a dumpster in the front to collect containers for later removal to approved sites. In the typical transaction, a spotter employed by Applicant meets the truck in the staging area for unloading. The spotter determines that the load is in compliance before permitting the truck driver to dump. If the load is completely unacceptable, the spotter orders the truck driver to leave the site without dumping. Otherwise, the spotter tells the driver to discard all containers in the dumpster in the front of the facility. Then, after the remaining load is dumped, the spotter removes recyclables and places them in a temporary storage area before they are taken by contractors or transported to approved locations elsewhere. The spotter also removes unauthorized items, such as appliances, hazardous materials, tires, furniture, batteries, and oil-based paint, and sets these materials aside in a designated area for transporting to approved locations elsewhere. Next, Applicant's equipment operator crushes the load. If he sees anything unauthorized in the pile, he orders the spotter to remove it. In the five years that the C&D facility has operated, there have been two cited violations. Neither is indicative of a intentional or reckless disregard of the law. It is questionable whether the violations even suggest negligence on the part of the operator of the facility. The first violation involved a 55-gallon drum of lacquer thinner, which the spotter had detected and placed to one side while the manager decided how to dispose of it properly. Due to its surveillance of the customer who left the drum, DEP inspected the facility immediately after Applicant's facility received the drum and issued a warning letter to Applicant dated December 22, 1992. Applicant complied with DEP's orders and disposed of the drum correctly. The other violation involved the acceptance of containers. Due to a misunderstanding of a change in the law, Applicant allowed containers to be dumped, as it had previously done lawfully. DEP inspected the facility in mid- 1993 and informed Applicant that it could not accept containers anymore. Applicant removed all of the accessible containers, and DEP reinspected and determined that the facility was in compliance. Applicant's employees remove litter from Jones Loop Road, 1.5 miles in one direction and one mile in the other, three days a week. Applicant operates the facility from 7 am to 5 pm Monday to Friday and 7 am to 2 pm on Saturday, which represents one-half hour less weekly than permitted (three hours less on Saturday, but one-half hour more each weekday, as the facility was to open at 7:30 am, not 7 am). During the two summers since Applicant began accepting C&D debris-- 1994 and 1995--strong, noxious odors have emanated from the site. Smelling like sewage or sludge, the odors irritate the throats and trigger headaches of nearby persons. One of the Petitioners noted that the odor permeated the air conditioning ducts of a nearby home if the garage door were left open. The source of the odor is unknown, but is suspected to be some form of sulphur, perhaps leaching from the gypsum in the drywall debris. There were no odor problems before Applicant began accepting C&D debris and dramatically deepened the retention pond. Applicant has spent up to $15,000 trying to eliminate the odor, but has not yet succeeded. There are other complaints concerning offsite runoff and groundwater contamination involving Alligator Creek and nearby property not owned by Applicant. The evidence in the record concerning these matters is anecdotal and best reserved for more systematic consideration in the MSSW permit (now known as environmental resource permit) for which Applicant from SWFWMD. By letter dated September 22, 1995, SWFWMD acknowledged that it is reviewing Applicant's application for an MSSW permit and requested Applicant to "[c]urtail all landfill activity to the greatest extent possible until the permit application has been approved by the District."
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the subject general permit. ENTERED on December 29, 1995, in Tallahassee, Florida. ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this December 29, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3712, 95-3713 and 95-3714 Rulings on Petitioners' Proposed Findings 1-4: adopted or adopted in substance, except that discrepancies between the proposal and actual work is rejected as irrelevant. Such matters are appropriate to enforcement proceedings, not permitting proceedings. 5 (first sentence): adopted or adopted in substance. 5 (second sentence): rejected as irrelevant. The original individual applicants remained liable on the original general permit until they notified DEP and obtained DEP's consent to the transfer. Rule 62-4.120(5). This violation of Chapter 62-4 is thus technical and not a suitable basis on which to deny a new permit. 5: rejected as unnecessary. 6: adopted or adopted in substance. 7-8: rejected as irrelevant. See ruling on 1-4 above. 9: adopted or adopted in substance. 10: rejected as unsupported by the appropriate weight of the evidence, as to proposed implication that this incident constitutes evidence of Applicant's "irresponsibility." The sole evidence of "irresponsibility" is based on the repeated noxious odors. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as irrelevant. See ruling on 5 (second sentence) above. Rulings on Applicant's Proposed Findings 1a: adopted or adopted in substance, except as to acreage. 1b-1f: adopted or adopted in substance. 1g: rejected as unsupported by the appropriate weight of the evidence, as to characterization of minor violations noted in the recommended order. 1h: rejected as unsupported by the appropriate weight of the evidence. 1i: rejected as irrelevant, unsupported by the appropriate weight of the evidence, and recitation of evidence. 1j: rejected as irrelevant. COPIES FURNISHED: Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 W. Douglas Beason Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Southwest Land Developers, Inc. c/o Bruce Laishley 28062-A Mitchell Ave. Punta Gorda, FL 33982 William Nelson Edwards 27365 Jones Loop Rd. Punta Gorda, FL 33982 Sharon B. Winesett 27650 Jones Loop Rd. Punta Gorda, FL 33982 Richard W. and Sherra Winesett 1574 Passaic Ave. Ft. Myers, FL 33901
The Issue Whether the Florida Fish and Wildlife Conservation Commission (FWC) should grant or deny the application for a license to Possess Class I and/or Class II Wildlife for Exhibition or Public Sale submitted to FWC by Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc. (Ms. Boynes or, collectively, Petitioners).
Findings Of Fact FWC is the agency of the State of Florida that regulates the possession, sale, and display of captive wildlife in Florida. Petitioners applied for the subject license by filing Application ID No. 2038 with FWC on or about April 20, 2012.1/ Petitioners want to operate the proposed facility as a sanctuary for big cats. The operation of the proposed facility as a sanctuary would not require commercial activity, and it would not require a license from the United States Department of Agriculture (USDA). Ms. Boynes was licensed by FWC from September 25, 2006, to October 2, 2011, to possess Class I and Class II wildlife "for exhibition or public sale" at the prior facility. Ms. Boynes represented to FWC on the 2006 license application, and on the subsequent annual renewal applications (the prior FWC applications), that the intended commercial activity for the prior facility was a "permanent exhibition." That operation required commercial activity at the facility, and it required a license from the USDA. Ms. Boynes applied for the requisite USDA license, but she was denied that license by the USDA. On her USDA application, she represented that she intended to keep the big cats at the prior facility as pets. Ms. Boynes's representations to FWC that she intended to possess the big cats as a "permanent exhibit" on the prior FWC applications were misrepresentations of her intentions. As will be discussed below, there was no evidence that the big cats were being possessed at the prior facility as anything other than pets. Ms. Boynes applied for a renewal of her FWC license prior to its expiration on October 2, 2011. The FWC denied that application for renewal.2/ On March 1, 2012, Ms. Boynes incorporated Tarzan's Big Cat Sanctuary, Inc. (the corporate Petitioner) as a not-for- profit corporation for purposes that included submitting the subject application. Ms. Boynes is president of the corporate Petitioner. The premises consist of caging for big cats, an open- air area, and perimeter fencing on a five-acre tract. While the prior facility has been operated under the name of Tarzan's Big Cat Sanctuary for many years, the business was not incorporated until March 1, 2012. Mr. Sipek is a former actor who once starred in Tarzan movies. Mr. Sipek held a FWC license for the prior facility and possessed big cats there for many years before Ms. Boynes became involved with the prior facility. Mr. Sipek's FWC license authorized him to possess Class I and Class II wildlife for the same purposes as Ms. Boynes's license. His license also required commercial activity at the prior facility, and it required a license from USDA. Mr. Sipek has not held a FWC license since May 5, 2011. There was no evidence that he ever held a USDA license. Ms. Boynes first became associated with the prior facility as a volunteer in 2006. Ms. Boynes has been residing on the premises with Mr. Sipek since December 8, 2007. Mr. Sipek was listed as vice president of the corporation when it was first incorporated. Mr. Sipek has not been an officer or director of the corporate Petitioner since October 25, 2012. Until February 27, 2012, three big cats were housed at the prior facility. The prior facility had a four-and-a-half year-old tiger named Lepa, a seven-year-old tiger named Bo, and a 17 year-old leopard named Oko. On February 27, 2012, Mr. Sipek was arrested and FWC removed Lepa, Bo, and Oko from the facility. FWC delivered all three cats to Vernon Yates, who has provided them sanctuary. All three cats were healthy when Mr. Yates received them. Ms. Boynes intends to have all three of those animals returned to the proposed facility if the subject application is granted and Petitioners become licensed to operate the proposed facility as a sanctuary. Shannon Wiyda and Jon Garzaniti are investigators employed by FWC. As part of their duties, they conduct inspections of animals in caged security enclosures to ensure humane treatment and sanitary conditions for animals and to make sure the public is kept safe. Inv. Wiyda conducted an inspection of the prior facility in September 2007. Ms. Boynes was present during that inspection. Numerous violations were detected during that inspection. Those violations included gaps in caging, rust on caging, and vegetation on fencing. Gaps in caging can enable an animal to escape and can enable visitors to the facility to get too close to an animal. Rust on caging can cause the cage to lose its structural integrity and could cause parts of the cage to break off, leaving a sharp object that could injure an animal. Vegetation on the fences compromised the structural integrity of the fencing, and provided a means for the animals to climb the fencing. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes received verbal warnings of the violations and a copy of the written report generated by Inv. Wiyda. Inv. Wiyda conducted an inspection of the prior facility in October 2008. Ms. Boynes was present during that inspection. Some deficiencies present in the 2007 inspection had been corrected, but others had not. There were still caging and fencing deficiencies. Gaps in the caging and rust were still present. The wire used to connect fencing or caging was not of sufficient gauge (strength). Vegetation was overgrowing the perimeter fence. Structures had been placed too close to the perimeter fence. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes received verbal warnings of the violations and a copy of the written report generated by Inv. Wiyda. Inv. Wiyda conducted an inspection of the prior facility in March 2009. Ms. Boynes was present during that inspection. Numerous caging and fencing deficiencies were detected during that inspection. Wire less than the required nine-gauge was used to connect pieces of the cages and fencing. Surface rust was observed. One of the animal enclosures did not have a roof, which is required to prevent animals from escaping. Structures were placed too close to the perimeter fencing. Vegetation was growing over parts of the perimeter fence. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Inv. Wiyda conducted an inspection of the prior facility in May of 2010. Ms. Boynes was present during that inspection. The licenses held by Mr. Sipek and Ms. Boynes were to possess the animals for sale or exhibition. Neither activity was occurring at the prior facility. A USDA exhibitor's license was required for the facility. Neither Mr. Sipek nor Ms. Boynes had the required USDA license. Numerous caging and fencing deficiencies were detected. The deficiencies observed during the 2010 inspection were similar to the deficiencies observed in the previous three inspections. Rust was observed on many surfaces of the cages and fencing. Required roofing was non-existent. Structures were placed next to fencing and vegetation overgrowth was present on the fencing. Structurally unsound enclosures, including cages, were discovered. Improper strength wire was used to hold cages together. The condition of the facility was poor. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. On or about August 24, 2010, Mrs. Boynes and Mr. Sipek applied for the requisite USDA exhibitor's license. Megan Adams, an Animal Care Inspector employed by the USDA, inspected the prior facility on August 10, 2010. Her observations and findings were similar to those of the FWC investigators. Ms. Adams observed unsanitary conditions and caging and fencing deficiencies. Ms. Adams also noted that all three of the animals at the facility had been declawed. The USDA has prohibited declawing of big cats since before 2006 and the American Veterinary Medical Association condemns the practice. By letter dated September 16, 2010, the USDA denied the application submitted by Ms. Boynes and Mr. Sipek. FWC does not have a rule that prohibits the declawing of big cats. Mr. Sipek had had Oko and Bo declawed before Ms. Boynes became involved with the prior facility. In 2008, Lepa arrived at the prior facility. Lepa was considered to be Ms. Boynes's animal. When Inv. Wiyda inspected the prior facility in 2008, she told Ms. Boynes not to declaw Lepa, and gave her a copy of the USDA policy against declawing big cats. Ms. Boynes subsequently had Lepa declawed by a veterinarian. At the formal hearing, Ms. Boynes testified, credibly, that she would not declaw any other big cats should FWC grant the subject application. Inv. Garzaniti conducted an inspection of the prior facility in August 2011. Ms. Boynes was present during that inspection. Mr. Sipek was not licensed at the time of the inspection. Ms. Boynes's license was active at the time of the inspection. Numerous caging and fencing deficiencies were detected. There were gaps in the caging, which compromised the integrity of the enclosures. Caging and fencing was mended together and piecemealed with bailing wire of less gauge than required. Rust was observed on surfaces of cages. One area of a cage had several pieces of rebar extending down from the ceiling of the cage with no brace on the bottom to support the rebar. One of the pieces of rebar broke off when light pressure was applied. Vegetative overgrowth was present on perimeter fencing, which negatively impacted the integrity of the fencing. The perimeter fencing was structurally unsound. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes possessed no USDA license as required. There was no evidence that the animals were being possessed for any purpose other than as pets. Invs. Wiyda and Garzaniti conducted an inspection of the prior facility on February 27, 2012. Ms. Boynes was present during the inspection. Numerous caging and fencing deficiencies continued to exist. The cages and the perimeter fencing were not structurally sound. Structures were placed too close to the perimeter fencing. Vegetative overgrowth was observed on the perimeter fencing. Sanitation violations were also observed. Standing water was discovered in cages. Proper drainage for surface water runoff was not provided. Standing water is unsanitary and can contain bacteria and feces, which can make an animal sick. There were multiple piles of old feces throughout the enclosure. Fecal waste is required to be removed daily because it is unsanitary and contains bacteria that can make an animal sick. Unclean water dishes with yellow and brown slime were discovered. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. The unsanitary conditions constituted a potential danger to the animals. Ms. Boynes did not have the required USDA license. There was no evidence that the animals were being possessed for any purpose other than as pets. On February 27, 2012, FWC arrested Mr. Sipek and removed the animals from the prior facility. Ms. Boynes was emailed and sent a copy of the report that was generated by the investigators. As to each FWC inspection, Ms. Boynes received verbal warnings as to the violations during and following each inspection, but she was not issued a written citation by FWC or the USDA for any of the deficiencies set forth above. As a licensee, Ms. Boynes was required to assure that the caging complied with FWC's rules setting caging, fencing, and sanitation standards. As alleged in FWC's denial letter, Ms. Boynes violated those rules.3/ On July 9, 2012, Ms. Boynes became solely responsible for the operations and maintenance of the facility. Since that date, Ms. Boynes has built three new pens and new perimeter fence. Inv. Garzaniti inspected the re-built facility on July 9, 2012. The re-built facility met all applicable standards, and Inv. Garzaniti recommended that the subject application be granted and the license issued.4/ FWC's denial letter stated as a ground for denying the subject application the alleged fact that Paul Fisher had been bitten by Oko (the leopard) at the prior facility on December 30, 2010. While FWC received a report of that incident, there was insufficient proof to establish that the incident occurred. FWC's denial letter also states as a ground for denying the application alleged deficiencies in the diet provided the animals at the prior facility. There was insufficient evidence to establish that the diet provided for the animals was insufficient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny the subject application for licensure filed by Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc. DONE AND ENTERED this 29th day of March, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 29th day of March, 2013.
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
