The Issue Whether the doctrine of equitable tolling applies to excuse Respondent's failure to timely request administrative hearings regarding the Administrative Complaints filed against facilities 1, 2, and 3.
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of group home facilities pursuant to section 20.197 and chapter 393, Florida Statutes. Angel Heart is a Florida registered corporation. Its corporate officers are Eartha Mays and Azjah Temple. Respondent's registered agent is Eartha Mays. The address for Azjah Temple, Eartha Mays, and the corporation is 18901 Southwest 106 Avenue, Suite A-111, Miami, Florida 33157. On January 23, 2020, APD filed ACs against the licenses of Angel Heart's group homes 1 through 4. According to the United States Postal Service, the ACs for group homes 1 through 3 were delivered to 18901 Southwest 106 Avenue, Suite A-111, Miami, Florida 33157, and signed for by Odra Kok at 12:06 p.m., on January 30, 2020. Odra Kok is the group home manager for Angel Heart's group home 3. On January 30, 2020, Ms. Kok happened to be in Respondent's administrative office and received and signed the certified mail receipts for the ACs related to group homes 1, 2, and 3. Ms. Kok placed the ACs on a table in the office and they were subsequently lost. Neither Ms. Mays nor Ms. Temple was in the office at the time Ms. Kok received the ACs. Angel Heart did not respond to the ACs for group homes 1, 2, and 3 within 21 days of January 30, 2020. On March 9, 2020, APD entered default final orders that revoked the licenses of group homes 1, 2, and 3. APD vacated the final orders in response to a motion filed by Respondent. Eartha Mays timely appealed the AC for group home 4. At the time the ACs were issued in January 2020, Angel Heart was already operating under a settlement agreement with APD regarding group homes 1 through 4 that resulted from one AC issued in May 2019 against all four group homes. The settlement agreement placed a number of requirements on Angel Heart, including attendance at quarterly meetings with APD officials to review compliance issues. The four identical ACs issued in January 2020 allege that Angel Heart failed to comply with certain terms of the settlement agreement. On February 5, 2020, one day after receiving the AC for group home 4, Eartha Mays emailed the AC to Kirk Ryon, APD's Regional Program Supervisor for South Florida, to get more information. Mr. Ryon did not inform Ms. Mays that three identical ACs had been issued for group homes 1 through 3. On February 14, 2020, Ms. Mays met with Kirk Ryon and other APD officials in person to conduct a quarterly meeting. The purpose of the quarterly meetings was to address any problems or complaints APD had with Angel Heart, including compliance issues. None of the APD officials at that meeting mentioned to Ms. Mays that there were a total of four ACs issued in January. On February 20, 2020, Ms. Mays filed her Request for Administrative Hearing with the APD Agency Clerk, Danielle Thompson, in response to the AC for group home 4. Although Ms. Thompson was aware of the existence of the other three ACs at the time of receiving the Request for Hearing on group home 4, Ms. Thompson did not call or correspond with Ms. Mays to inquire as to why she did not appeal the other three ACs. After filing her Request for Administrative Hearing, Ms. Mays emailed Trevor Suter, the APD attorney who authored all of the ACs, to make sure that her Request for Administrative Hearing had been received. Mr. Suter responded to that email later that same day, saying that he would make sure the clerk received it. Even though he had authored all four ACs, Mr. Suter did not call or correspond with Ms. Mays as to why she did not appeal the three other ACs. The allegations in all four ACs are identical as to Count I, and make no distinctions as to which allegations apply to which facility. Ms. Thompson found that the Request for Administrative Hearing filed by Angel Heart as to group home 4 was legally sufficient, including listing the facts alleged in the AC which were in dispute. Ms. Thompson testified that the only thing Angel Heart would have had to do to make the Request for Administrative Hearing applicable to all four ACs was to list the additional license numbers or style the title so it was clear that the appeal included all four group homes. Ms. Thompson explained that it is APDs standard procedure to give appellants who file timely, but legally deficient requests for hearing, multiple opportunities to amend their hearing requests to address deficiencies. Ms. Thompson will often call pro se appellants to advise of any deficiencies and permit them extra time to refile or amend their filing. Ms. Thompson indicated that as long as the petition for hearing was filed timely, she would allow appellants extra time to amend their petition even after the 21 days to appeal had expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities treat the pending Request for Hearing for group home 4 as an appeal of all four Administrative Complaints or, in the alternative, allow Angel Heart Support Services, Inc., an additional 21 days from the date of the Final Order to appeal the Administrative Complaints for group homes 1, 2, and 3. DONE AND ENTERED this 20th day of July, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of July, 2020. COPIES FURNISHED: Michael Paul Gennett, Esquire Polsinelli, P.C. 1111 Brickell Avenue, Suite 2800 Miami, Florida 33131 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is an agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under its jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Sometime in 1973 Petitioner was arrested for possession of marijuana. The record does not indicate that Petitioner was convicted on this charge. Sometime in 1977, Petitioner's boyfriend was beating her with his fists and Petitioner stabbed him with a kitchen knife killing him. Petitioner pled to a charge of manslaughter. Petitioner served 10 months in prison and five years on probation. Petitioner received counseling for domestic violence at Peace River Personal Development. Petitioner is presently not married, has two children, ages three years and four and one half years. The father of the children, although ordered to pay child support, does not pay Petitioner any child support. Other than her children, no one lives in the home with Petitioner. Shortly after serving her probation on the manslaughter charge, Petitioner failed to stop on a red traffic signal. Petitioner fled from the police officer in her car and continued to walk away from the officer after her car was stopped. Petitioner was charged with fleeing from police and served one year on probation. Petitioner has also received a citation for an expired tag. Since serving her time on the manslaughter charge, Petitioner has held the following jobs: Tiny Tots Day Care Center - Bartow (although it appears that this employment was before 1985, there were no dates or positions furnished by Petitioner), Nurse Assistant - Bartow Convalescent Center 1985-86. Nurse Assistant - Polk General Hospital (Barlow) 1/87-7/90. Day Care Teacher - Greater St. Paul Day Care Center (Lakeland) - 8/90-6/92. Nursing Assistant - Presbyterian Nursing Center (Lakeland) - 8/92-2/95. Faith Harbor Day Care Center - 6/95-9/95. Sprint Staffing - Temporary Service. Norrell Temporary Service (Citrus Production -Assemble Production). Adecco Personnel Services - Lakeland Regional Medical Center (Lakeland) - Housekeeper. Petitioner is involved in church work. Although Petitioner has worked in positions of trust and responsibility from sometime before 1985 until September 1995, there is no evidence that Petitioner caused any harm to the clients she was serving during this period. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated herself such that she will not present a danger to the safety and well being of the clients she will be serving in any position of trust or responsibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 28th day of May, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge 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 28th day May, 1997. COPIES FURNISHED: Roland Reis, Esquire Department of Children and Family Services District XIV 270 Bartow Municipal Airport Bartow, Florida 33830 Mary Dawsey 303 North Burnell Parkway No. 14 Lakeland, Florida 33801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint dated December 19, 1995, and, if so, the penalty which 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 Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of correctional officers. Section 943.12(3), Florida Statutes. Ms. Davis was certified by the Commission on May 18, 1993, and was issued Corrections Certificate Number 137735. She is currently certified as a corrections officer. Incident at the Royal Palm Beach K-Mart. In the Administrative Complaint, the Commission charged that On or about September 16, 1994, the Respondent, Dorothy B. Davis, did knowingly obtain, use, or did endeavor to obtain or to use a bread maker and a breadmixer of the value of $300.00 or more, the property of K-Mart, with the intent to either temporarily or permanently deprive the owner of a right to the property to her own use. On the morning of September 16, 1994, Timothy Meyers, a K-Mart employee of 16 years, was working as manager of the Royal Palm Beach K-Mart. Mr. Meyers observed Ms. Davis in the kitchen appliance aisle of the store with a shopping cart containing a Black and Decker bread maker and a Kitchen Aide mixer. The bread maker was priced at about $160.00 and the mixer at about $200.00. Moments later, Mr. Meyers observed another woman and a man push a shopping cart into the kitchen appliance aisle and, without looking at the various models available, put into their cart the same model Black and Decker bread maker and the same model Kitchen Aide mixer that Ms. Davis had in her cart. Mr. Meyers found it unusual that a shopper would choose these items without looking at the prices or at the other models available because the items were so expensive. Consequently, he followed the couple to the front of the store, where he observed them pay for the two items with cash. Mr. Meyers observed the couple leave the store by the front exit and put the bread maker and the mixer into a blue Ford Bronco. The man handed the woman what appeared to be the sales receipt for the bread maker and the mixer, and he then got into the Bronco and drove to the west side of the shopping center parking lot. Mr. Meyers observed the woman return to the store. She located Ms. Davis and handed her a piece of paper which Mr. Meyers believed was the receipt for the bread maker and the mixer. Mr. Meyers observed Ms. Davis push the cart containing the Black and Decker bread maker and the Kitchen Aide mixer toward the garden center, which is located on the east side of the store and has a separate exit and check-out register. He asked another store employee to follow Ms. Davis, and he went out the front exit to a location where he could observe the garden center exit but could neither see inside the garden center nor be seen by someone inside the store. When Mr. Meyers saw Ms. Davis push the cart containing the bread maker and the mixer through the garden center exit and onto the ramp leading into the parking lot, he stepped out and stopped her. He asked her if she had paid for the items in her cart at the front register, and she said yes and handed him a receipt for items of the same make and model as those she had in her cart. Mr. Meyers looked at the receipt, told Ms. Davis that she had not paid for the items, and told the cashier in the garden center to call the police. At this point, Ms. Davis left the cart on the sidewalk and walked away. Although Mr. Meyers told her to stop, she continued walking until she reached the Taco Bell restaurant located on the east side of the parking lot, about two hundred feet from the K-Mart store, where she waited until the police arrived. The K-Mart cash register detail tapes, which are the records of every transaction at the store, were checked and showed that, on the morning of September 16, 1994, only one Black and Decker bread maker and one Kitchen Aide mixer were sold. The evidence presented is clear and convincing that, on September 16, 1994, Ms. Davis took property belonging to K-Mart out of the store without paying for it. The property was valued at more than $300. These acts fall within the definition of grand theft found in section 812.014(1) and (2)(c)1, Florida Statutes, which constitutes a third degree felony pursuant to section 812.014(2)(c)1. Incidents involving Sandra Carey. In its Administrative Complaint, the Commission alleged that On or about October 18, 1994, Respondent, Dorothy B. Davis, did unlawfully commit a battery upon Sandra Carey, by actually touching or striking her or intentionally causing bodily harm to her against her will. On or about October 26, 1994, Respondent, Dorothy B. Davis, did unlaw- fully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well- founded fear in Sandra Carey that said violence was imminent, by swerving toward her with deadly weapon, to wit: a motor vehicle. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did unlawfully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well-founded fear in Sandra Carey that said violence was imminent, by throwing at her or in her direction a deadly weapon, to wit: beer bottles. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did knowingly use intimidation or physical force, threats, or attempts thereto, or offered pecuniary benefit or gain to Sandra Carey with intent to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or be absent from an official proceeding to which such person has been summoned by legal process. On or between October 20 and October 26, 1994, Respondent, Dorothy B. Davis, did unlawfully, with intent to place Sandra Carey in reasonable fear of death or bodily injury, willfully and maliciously, follow or harass said person and make a credible threat, by assaulting her with a motor vehicle, throwing beer bottles at her, and/or making verbal threats of bodily harm, which caused said person substantial emotional distress and served no legitimate purpose. (The allegations in the Administrative Complaint are set out in paragraph form for clarity.) On October 18, 1994, in Belle Glade, Florida, a fight took place in or near a grocery store parking lot in the 400 block of Southwest Avenue B Place between an unidentified man and a woman named Shirkia Webb. Ms. Webb was apparently not the winner of this fight, and the fight apparently ended when Ms. Webb was knocked to the ground. Ms. Davis drove into the parking lot at about the time Ms. Webb was knocked to the ground. She was driving her Ford Bronco, and her children, including her seven- month-old baby, were in the back seat. When Ms. Davis stopped the car and opened the door, Ms. Webb ran over to her and began talking to her. Ms. Davis then left her children in the vehicle and walked into the grocery store, leaving the keys in the ignition. While Ms. Davis was in the grocery store, Ms. Webb got into the Bronco and ran it into the vehicle owned by the unidentified man with whom she had been fighting. This vehicle was apparently parked in the grocery store parking lot at the time. When Ms. Davis came out of the grocery store, a crowd of people had gathered. She saw that her Bronco had been involved in an accident, and she learned that Ms. Webb had been driving the vehicle. She spoke with one of the police officers on the scene and told him that Ms. Webb had stolen her Bronco with her children inside. She later filed grand theft charges against Ms. Webb. Ms. Carey either overheard Ms. Davis telling the police officer that Ms. Webb had stolen her Bronco or someone told Ms. Carey that Ms. Davis had done so. Ms. Carey then went to one of the police officers and told him that Ms. Davis had given Ms. Webb her Bronco knowing that Ms. Webb intended to use it to hit the man’s vehicle. Someone in the crowd told Ms. Davis what Ms. Carey told the police officers. Ms. Davis was upset at the time because her children were in the Bronco when Ms. Webb hit the other vehicle. When she learned that Ms. Carey told the police that she had given Ms. Webb permission to drive the Bronco, she rushed up to Ms. Carey and struck her in the chest, yelling at her to stop telling lies. This incident was observed by several police officers, and Ms. Davis does not deny that she struck Ms. Carey on this occasion. On October 20, 1994, Ms. Davis was driving her Bronco down 5th Street in Belle Glade, and she speeded up when she saw Ms. Carey crossing the street ahead of her. Ms. Carey was carrying her child, whom she had just picked up from the baby sitter, and she hurried across the street because she believed Ms. Davis would hit her if she did not move out of the way of the Bronco. Ms. Carey reported this incident to the police on October 20. In a second incident, Ms. Carey was at the Glades Wash House when Ms. Davis pulled up in her Bronco and told Ms. Carey she was going to “mess her up” for telling the police that she had given Ms. Webb permission to drive her Bronco during the altercation which took place on October Ms. Carey reported this incident to the police on October 21, 1994. On October 26, 1994, Ms. Davis was driving her Bronco on 4th Street in Belle Glade and she swerved toward Ms. Carey as she was walking along the side of the road. Ms. Carey moved out of the way to avoid being hit; Ms. Davis was laughing as she drove past Ms. Carey. Ms. Carey reported this incident to the police on October 26, 1994. Ms. Carey feared that Ms. Davis would hurt her or her baby, and she experienced some emotional distress until after the October 26 incident. After this incident, she did not think about it anymore and went on with her life because she had no further contact or problem with Ms. Davis. The evidence presented is clear and convincing that Ms. Davis struck Ms. Carey in the chest on October 18, 1994. This act falls within the definition of battery found in section 784.03(1), Florida Statutes, which constitutes a first degree misdemeanor pursuant to section 784.03(2). The evidence presented is clear and convincing that Ms. Davis threatened Ms. Carey with bodily harm both by trying to run her down on the street on October 20 and October 26 and by her words at the wash house on October These threats fall within the definition of assault found in section 784.011(1), Florida Statutes, which constitutes a second degree misdemeanor pursuant to section 784.011(2).1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issue a final order finding that Dorothy B. Davis has failed to maintain good moral character and revoking her certification as a corrections officer. DONE AND ENTERED this 6th day of February, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge 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 6th day of February, 1997.
The Issue The issue presented is whether Petitioner is the lowest, responsive bidder on Board of Regents' Project BR-787.
Findings Of Fact A Call for Bids was issued by the Respondent Board of Regents (hereinafter "Board") for Project BR-787 for the expansion and renovation of the University of West Florida Library. The Call for Bids provides that at least 15 percent of the project contract amount must be expended with Minority Business Enterprises (hereinafter "MBEs") certified by the Department of General Services (now known as the Department of Management Services) as set forth under the Florida Small and Minority Business Assistance Act, Chapter 287, Florida Statutes. That document further provides that if the 15 percent minority participation is not obtained, the Board would require the apparent low bidder to provide evidence of its good faith efforts to meet that goal. Lastly, that document advises potential bidders to review the requirements for MBE participation in the Special Conditions in order to schedule the necessary tasks to accomplish such good faith efforts. The Project Manual, Volumes 1 and 2, contains the bidding requirements, including the general and special conditions, specifying the good faith effort requirements applicable to all bidders. The Project Manual, Instructions to Bidders, provides that the award of the contract is subject to the demonstration of good faith efforts by any bidder whose bid proposes less than 15 percent participation in the contract by MBEs. The required good faith effort to be demonstrated is set forth in the Special Conditions. That section further provides that the contract will be awarded by the Board to the lowest qualified and responsible bidder, provided the bid is reasonable and is in the best interest of the Board to accept it. The Project Manual, Special Conditions, provides that if the bid does not contain the required 15 percent participation by certified MBEs, then the apparent low bidder will be required to provide evidence of good faith efforts within two working days after the opening of bids. It further provides that incomplete evidence not fully supporting each of the eight requirements of Paragraph 1.7 of the Special Conditions shall constitute cause for determining the bid to be unresponsive, except that the Board may, at its option, seek supplementary evidence not submitted by the bidder. Special Conditions 1.7.1 through 1.7.8 of the Project Manual contain eight factors relating to the bidders' obligations to make and document a good faith effort to meet the MBE goal. The factors listed to be considered by the Board are an almost verbatim recitation of the eight factors listed in Section 287.0945(3)(b), Florida Statutes. Leonard Monks, Chair of the University of West Florida's MBE Advisory Committee conducted a pre-bid/pre-solicitation meeting for Project BR-787 on December 7, 1992. Among other things, he discussed the MBE participation program and handed out a packet of materials to those in attendance at the pre- bid meeting. That packet included a General Instructions sheet regarding the University's MBE Advisory Committee and the requirement that the MBEs utilized must be certified. That Instruction sheet further advised that a listing of all known certified sources was available from the University's Purchasing Office, the office of which Monks was the Director. Attached to that General Instructions sheet were a sample checklist to be used by the University's MBE Advisory Committee in evaluating a bidder's good faith efforts and a separate multi-page document entitled Florida Department of Management Services Certified Minority Business Enterprises. In response to a question from one of the attendees, the potential bidders were informed that the list referenced in the General Instructions was the same list provided in the packet distributed at the meeting. Both Joseph Dusek and Ed Hewes attended the pre-bid/pre-solicitation meeting on behalf of Petitioner Opus South Corporation (hereinafter "Opus"). Both of them understood that the list handed out during that meeting contained both the certified MBEs and the community and minority organizations which they were expected to contact. Their review of that list revealed not only MBEs, some of whom were known to them to be MBEs, but also businesses whose names suggested they were minority organizations. For example, the list contained a business called Minority Business Consultants & Contractors, Inc., and a business called Minority Specialty Services, Inc. When they reviewed the list in more detail after this dispute arose, they realized that those businesses with names sounding like minority business assistance organizations were simply MBEs. After the meeting, Dusek and Hewes divided between them the work to be performed in submitting a bid for the project. Dusek took primary responsibility for preparing Opus' estimate of the cost involved, and Hewes took primary responsibility for MBE compliance and good faith effort documentation. Opus did not contact Monk's office for any additional information subsequent to the pre-bid meeting and prior to the time of bid opening since Opus did not know that Monk's office had additional information it had not provided to Opus. In addition to placing a newspaper ad and taking other steps to comply with the good faith effort requirement, Opus sent initial letters to all of the businesses on the list provided to it at the pre-bid conference. That initial solicitation letter was sent by Opus to 72 certified MBEs. As a result of that initial letter, Opus received bids, indications of interest, and advice from several of those businesses that the businesses were not interested in bidding the project. When Opus sent its follow-up solicitation letter, it did not send a follow-up letter to 3 of the 72 businesses which had specifically advised Opus they were not interested in bidding the project. Accordingly, Opus only sent follow-up solicitation letters to 69 certified MBEs. As a result of Opus' erroneous assumption that the list of certified MBEs provided at the pre-bid conference also included minority community organizations, Opus did not send copies of the information provided to certified MBEs to any minority community organizations providing assistance to MBEs. On December 22, 1992, Opus, Intervenor Greenhut Construction Company, Inc. (hereinafter "Greenhut"), and 6 other contractors submitted bids on Project BR-787. All eight bids for BR-787 came in below the Board's budget for the project. None of the eight bids submitted for the project contained any MBE involvement. Opus was the apparent low bidder. Opus' bid was $5,959,100, and the next lowest bid was from Greenhut, in the amount of $6,010,000. Since the bid submitted by Opus did not contain the required certified MBE participation of 15 percent, the Board requested Opus to submit documentation to demonstrate its good faith effort in obtaining MBE participation. Opus submitted its initial good faith documentation package on December 23, 1992, and later supplemented that good faith effort package with additional documentation. Paragraph 1.7 of the Special Conditions of the bid documents sets out the good faith requirements for the project and itemizes the requirements of the Board as to what documentation would provide evidence of satisfaction of the eight factors to be considered in evaluating the good faith efforts of a bidder. Subparagraphs 1.7.4 and 1.7.8 cite to the specific statutory factors and provide as follows: 1.7.4 Statute 287.0945(3)(b)4 STATUTORY REQUIREMENTS: Whether the contractor followed up initial solicitations of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested; IMPLEMENTATION REQUIRED BY THE STATE UNIVERSITY SYSTEM: The Bidder shall make no less than one written follow-up contact per initial contact. In the event a positive response is obtained, the Bidder shall request, in writing, a meeting between MBE and the Bidder's staff. DOCUMENTATION REQUIRED: Copy of letters, telegrams, and/or meeting notes required as evidence. * * * 1.7.8 Statute 287.0945(3)(b)8: STATUTORY REQUIREMENTS: Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons. IMPLEMENTATION REQUIRED BY STATE UNIVERSITY SYSTEM: Did the Bidder send copies of the information provided under Subparagraphs 1.7.2 and 1.7.3 to the organizations, groups, and offices listed in 1.7.8.1. DOCUMENTATION REQUIRED: Copies of information sent to such organizations, groups, and offices, at least one week prior to bid date required as evidence. Opus' transmittal letter of its good faith efforts package outlines the documentation being submitted. The letter does not mention any contact with minority community or business assistance organizations. Monks, the Chair of the University's MBE Advisory Committee, contacted Hewes and inquired about the absence of documentation for organization contact. Hewes advised Monks that minority organizations had been contacted based on the fact that Opus had contacted every organization on the list given it by Monks. Monks then advised Hewes that there were other organizations that were supposed to be contacted that were not on that list but rather were on a different list that had been available in his office but that had not been provided to all of the bidders at the pre-bid meeting. The list, however, had been provided to some of the other bidders who had specifically called and asked for it prior to submission of the bids. The existence of that separate list was not disclosed to all of the bidders who attended the pre-bid meeting. Monks sent to Opus by FAX transmission the list which had been given to only some of the bidders. That list contains the names of nine "area advertisers," a category not relevant to this proceeding since Opus did place an advertisement as part of its good faith efforts. The list also contains eight names under the heading "area business and community organizations." Included within those eight are the Dodge Reports, the Northwest Florida Chapter of the Associated General Contractors of America, and the Small Business Development Center. The Small Business Development Center is an entity which is part of the University of West Florida. "Pete" Singletary is the Director of the University of West Florida's Small Business Development Center. He attended the pre-bid meeting and therefore knew who the bidders were who attended that meeting and knew of the opportunity for certified MBEs to participate in the bid for the project. He is also on the University's MBE Advisory Committee. Accordingly, the Small Business Development Center was aware that bids were being solicited for the library expansion/renovation project. Upon receiving a copy of the second list, by letter dated December 29, 1992, Hewes advised Monks that Opus had in fact contacted Dodge Reports and enclosed a copy of the documentation reflecting that to be true. Hewes also advised Monks that contact had been made with Associated General Contractors. In fact, Joseph Dusek of Opus is the vice president and sits on the board of directors of that organization. Written notice was not, however, submitted to that organization by Opus. The University's MBE Advisory Committee met on December 30, 1992, and reviewed Opus' good faith efforts documentation. The Committee members used a checklist which was not a part of the bid documents but which had been provided at the pre-bid meeting. In essence, the checklist contains a synopsis of the eight factors to be considered, as set forth by statute and in Special Condition 1.7, and a yes/no column to be marked. The checklist itself required that all questions be marked "yes" in order to declare the apparent low bidder responsive, a requirement not found in the statute. The three members of the Advisory Committee checked the yes columns for the items on the checklist except one. The seventh item on the checklist provides as follows: "Did the apparent low bidder provide copies of information to minority committee organizations and to minority contractor groups at least one week prior to bid opening." Each of the committee members answered that question, not by checking yes or no for that item, but rather by commenting that although Opus had not contacted minority organizations, Opus had in substance made a good faith effort because Opus had contacted every available MBE directly. By memoranda dated January 4 and January 12, 1993, the University of West Florida informed the Board's Office of Capital Programs of its determination that Opus had made the necessary good faith effort to obtain MBE participation and recommended that the contract be awarded to Opus. In making its recommendation, the University explained that the Advisory Committee had no difficulty determining that Opus had made a good faith effort but did have difficulty conforming that determination to the check list which it was required to use. The University further explained as follows: The obvious intent of Item 7, "Did the apparent low bidder provide copies of information to minority community organiza tions and to minority contractor groups at least one week prior to bid opening," is to reach those certified (S)MBE firms that may be interested and may need assistance in bidding the project. It is but one more method of reaching the individual (S)MBE firms. Opus South wrote to each of the certified (S)MBE firms listed in a packet handed out to all potential bidders at the pre-bid conference indicating not only those (S)MBE firms in the region but also those elsewhere in the state (i.e., Tampa, Ocala) who had indicated an interest and capability to do work statewide. If, after being contacted they needed assistance, which one could assume they would, in turn and on their own, they could seek out such minority community organizations, minority contractor groups, small business development centers, and other such organizations. In addition to corresponding with all (S)MBE firms, Opus South subsequently verified to the University's committee by their letter dated December 29, that contact was made with the AGC (Associated General Contractors of America) via F. W. Dodge's Office here in Pensacola. NOTE: It was the opinion of some members of the committee that on Item 4.A., wherein it asked "Did the apparent low bidder provide a reasonable number of letters to show that MBEs were solicited from the available trade areas listed in the DGS MBE Directory," if the contractor was "marginal" in his show of numbers, then Item 7 would be one way to further substantiate his claim. If, however, on Item 4.A., the contractor contacted directly all such certified (S)MBEs having indicated an interest, the instructions should/could read: Item 7 need not apply. In consideration of the above reasoning, and with the full review of the very pertinent comments by the individual commit tee members (clarifying their respective checkmarks), we find no reasonable evidence nor cause to reject said submittal and thus find it to be in compliance. Opus was notified in writing as to the University's recommendation that the contract should be awarded to Opus. Patricia Jackson, the Board's administrator responsible for contract awards, reviewed the Committee's recommendation. She rejected the recommendation of the Committee based on the Board's unwritten policy that unless each member of the Committee checks "yes" for each item on the checklist, the Board will not accept a finding that a bidder is in compliance with all requirements. She further determined that Opus' bid should be rejected because, in her opinion, the Committee had not reached a consensus. That opinion can only be based on a misunderstanding of the meaning of the word "consensus" because each of the Committee members were in agreement as to the proper interpretation of Special Condition 1.7.8 and were in agreement that the contract should be awarded to Opus. Jackson notified the Committee that Opus did not meet Special Condition 1.7.8 and directed the Advisory Committee to meet again. As a result, the Committee agreed to reject Opus' bid as directed by Jackson, reviewed the bid and good faith efforts of Greenhut, and recommended that the contract be awarded to Greenhut. In directing the Advisory Committee to reconvene and reject Opus' bid in compliance with Jackson's instructions, John Jarvis, the project manager and Director of the University's Facilities Planning and Management, explained the Board's staff's decision as follows: Attached, for your information, action and files, is the subject response/ruling dated January 21, 1993, by the Office of Capital Programs (OCP) as regards the findings of the UWF Minority Business Enterprise Advisory Committee recommendation; i.e., that the consensus-recommendation of said committee was that the contractor was in-compliance. This was not acceptable at the Board staff level, on the grounds that the submittal does not comply with the subparagraph 1.7.8 of the project manual special conditions (see copy of excerpt attached) as regards question 7 of the checklist. With this ruling, this is to request you, as the university minority business officer, officially notify (I assume in writing) the apparent low bidder that good faith effort requirements are not in compliance with contract documents (see attached excerpt copy of standard practice 00-0000-3-04-01, page 4 of 5, addressing good faith effort determina tion. See the standard practice cited for special requirements: express mail (return receipt requested), submittal deadlines, and such. Note: you have been copied all other pertinent correspondence and submittals to Tallahassee. This writer and Mr. Martin have exerted much time and effort in the questioning of the "verbatim" reading of the CMBE good faith effort compliance checklist versus a 'commonsense' approach and methodology. And, although it has proved to be to no avail on this project the Board offices are looking at the entire CMBE process. We will see changes forthcoming. In the meantime, this ruling stands, and we must proceed to the next step. Subsequently, Jackson again reviewed the bid of Opus and determined that Opus had not sent follow-up letters to three of the certified MBEs initially contacted. Jackson determined that Opus' bid should have also been rejected for failure to send the three follow-up letters. However, the Board's unwritten interpretation of the condition relating to follow-up letters is that if an MBE responds to an initial contact by informing the contractor that the MBE does not wish to participate in the project, the Board does not require a follow-up letter. There is no requirement that the MBE express its lack of interest in writing, and there is no requirement that the contractor document the MBE's expression of no interest. The only MBEs to whom Opus did not send follow-up letters were those which had informed Opus they did not wish to participate in the contract. Accordingly, under the Board's unwritten interpretation of Special Condition 1.7.4, Opus was in compliance with that Condition. Greenhut, the next apparent low bidder, submitted its good faith efforts documentation for review. Greenhut's good faith efforts submittal was found to be in compliance with all requirements, and Greenhut was determined to be the lowest responsive bidder. Greenhut was awarded the contract for the project by the Chancellor of the Board on April 2, 1993. Greenhut's good faith efforts documentation revealed that Greenhut had contacted fewer certified MBEs than had Opus. Greenhut, however, had contacted several community and minority organizations. When Jackson, from the Board's staff, reviewed the good faith efforts documentation submitted by Greenhut, she determined that Greenhut had complied with the requirement to contact minority and community organizations for the sole reason that Greenhut had contacted the University of West Florida's Small Business Development Center. She determined that not only did the other minority and community organizations contacted by Greenhut not qualify as organizations that render the type of minority assistance contemplated by the statute and the Project Manual, but also that the only organization which she would approve as a qualifying organization was the Small Business Development Center. Since the only organization which the Board's staff would approve as qualifying to meet Special Condition 1.7.8 was the Small Business Development Center, then, in fact, Opus' bid was rejected due to Opus' failure to contact the Small Business Development Center, which is part of the University of West Florida and whose director is on the University's MBE Advisory Committee and who attended the pre-bid meeting in person. Accordingly, the rejection was for failing to notify one specific entity which had full knowledge of the bid solicitation. In other words, Opus' bid was rejected for failing to notify the University itself. Although notification to minority organizations may well be a material condition in most situations, where, as here, the only organization which qualifies is the University, the condition cannot be considered material. Since notifying the University as to the contents of documents given to the bidders by the University would be a futile and senseless act, a condition requiring that cannot logically be considered a material condition. It is a technicality only since performing it is not likely to increase MBE participation. There were several MBEs who contacted the Small Business Development Center regarding the bid solicitation for Project BR-787. Opus had contacted each one of those MBEs directly. Accordingly, had Opus contacted the Center, it would only have made contact with the same MBEs through a different route. Opus received no economic advantage by not sending a letter to the Small Business Development Center advising it that Opus intended to bid on the project, a fact the Center already knew. The Board determined that the failure of Opus to send a letter to the Small Business Development Center was a material, non-waiveable irregularity which rendered Opus' bid non-responsive. The Board reached this conclusion not because it affected the amount of MBE participation or provided Opus an economic advantage over the other bidders. Rather, the Board determined the irregularity was material because it deviated from the Board's interpretation of Section 287.0945, Florida Statutes. The Board took this position even though it recognizes that the statute does not mandate bid rejection in such circumstances. No explanation has been offered for the University's failure to provide the second list--the list containing the names of several organizations including the Small Business Development Center--to all bidders. Withholding the list from the bidders who attended the pre-bid meeting did not promote the purposes of the MBE program. Moreover, the provision of that list to some of the bidders without providing the list to all of the bidders subverted the competitive bidding process by giving some of the bidders an unfair advantage over the others.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding Contract No. BR-787 to Petitioner Opus South Corporation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of July 1993. LINDA M. RIGOT 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 29th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-2740BID Petitioner's proposed findings of fact numbered 1-7, 9-37, and 41-43 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 8 has been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 38, 39, and 44 have been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed finding of fact numbered 40 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5, 9, 11-15, 17- 26, 30-33, 35, 36, 40 and 44 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 16, 28, 29, 47, and 48 have been rejected as not supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 4, 6-8, 10, 38, 39, and 45 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 27, 34, 37, and 46 have been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 41-43 have been rejected as being irrelevant to the issues herein. Intervenor's proposed findings of fact numbered 1-5, 9-15, and 17-26 have been adopted either verbatim or in substance in this Recommended Order. Intervenor's proposed finding of fact numbered 28 was not supported by the weight of the evidence in this cause. Intervenor's proposed findings of fact numbered 6-8 and 16 have been rejected as being unnecessary to the issues involved herein. Intervenor's proposed finding of fact numbered 27 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Jane Mostoller, Esquire Gregg A. Gleason, General Counsel Board of Regents Office of General Counsel Suite 1522 325 West Gaines Street Tallahassee, Florida 32399-1950 W. Robert Vezina, III, Esquire Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32399-0589 Robert A. Emmanuel, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596
The Issue Whether Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Petitioner is currently disqualified from working in a position of special trust as a result of a felony robbery conviction in 1985; two felony petit theft convictions and one grand theft conviction in 1987; two felony petit theft convictions in 1989; one felony cocaine possession and one felony petit theft conviction in 1993; and one felony petit theft conviction in 1994. Petitioner habitually used illegal drugs from 1985 until 1995. In order to "feed her habit" she shop-lifted. As a result, she has been in prison four separate times. There is no direct evidence to suggest that Petitioner ever stole from patients in her care or that her drug abuse ever endangered such patients. However, she admitted that in August 1985, she resigned from a position providing care for the developmentally disabled at Tacachale State Hospital because of her drug use. Petitioner applied and was denied an exemption to work in a position of special trust in 1989. Petitioner next applied for an exemption in December 1997. After a hearing on December 3, 1997, the Department's Exemption Review Committee denied her exemption request due to a report which had been prepared back in 1989 when Petitioner had only been drug-free for eight months; because Petitioner had relapsed into addiction when her previous exemption hearing resulted in denial of the exemption; and because Petitioner was still on probation for her last criminal offense. However, the committee indicated in its report that Petitioner should be reconsidered for an exemption after she was off probation for a significant period of time. Petitioner timely filed for this formal Section 120.57(1) Florida Statutes, de novo proceeding. At formal hearing, Petitioner claimed that she last used illegal drugs on October 6, 1993. Other evidence, including her 1994 conviction for petit theft, suggests that drugs controlled her life more recently than 1993. However, based on her candor and demeanor while testifying and all the other evidence, I conclude that Petitioner simply misstated the year of her last drug use. At some point, Petitioner walked out of a drug rehabilitation facility due to resuming drug use. Petitioner ultimately went through drug rehabilitation at Bridge House Residential Treatment Program from January 29, 1995, through March 25, 1995, and continued successfully in its aftercare program. Since 1993, Petitioner has obtained her high school diploma (GED). Petitioner attended six months of classes with Santa Fe Community College Work Exploration Department. After completing those classes, she voluntarily began attending Job Club at Santa Fe Community College, where she has worked well with the disabled. Petitioner briefly worked at Alternative Care, Inc., before the Department's disqualification notification in 1995. Alternative Care, Inc., is a small group home for disabled persons. As of his October 31, 1995, letter, Alternative Care Inc.'s Director considered Petitioner eligible on her merits for rehire. Petitioner has been a client of the Florida Department of Labor and Employment Security, Division of Vocational Rehabilitation since May 1, 1995. Mr. Warren McCluney and Jerald Means of that agency recommended in a letter that she be granted the exemption and that she be allowed to work with mentally challenged individuals. They related in their letter that they would trust Petitioner with their own mothers. Warren McCluney is currently Petitioner's vocational rehabilitation counselor with the State of Florida Department of Labor and Employment Security, Division of Vocational Rehabilitation. He has worked as a vocational rehabilitation counselor for 18 years. He did not know Petitioner before assuming this professional relationship with her. Mr. McCluney also represented that he had simultaneously worked for 18 years as a part-time uncertified substance abuse counselor at Vista Pavillion, which is an inpatient and outpatient rehabilitation facility. Petitioner has never been one of Mr. McCluney's substance abuse clients at Vista Pavillion. Based on his education, training and experience, Mr. McCluney is confident that Petitioner's personal rehabilitation, education, and current support network would prevent her relapse into drug abuse. He has observed her withstand stressors since 1995 and believes she will remain drug free despite any outcome of the instant formal proceeding. Mr. McCluney had sufficient faith in Petitioner so as to get her a job with his brother in January 1996. Since that time, Petitioner has been continuously employed part-time in a responsible position as a receptionist at McCluney Prosthetics. Her employer, T. Howard McCluney, recommended, in a letter, that the exemption be granted to Petitioner. Therein, he related that as his office receptionist, Petitioner handles patients in a respectful and professional manner, handles cash, and works on special projects as assigned, including collections. He described her as "trustworthy,... reliable, dependable, and a hard worker." Petitioner has two adult daughters. One of them, Helen Harris, testified at formal hearing. Petitioner's rehabilitation over the last three years has made Ms. Harris very proud. During the last three to four years, Ms. Harris has had an opportunity to closely observe Petitioner. During this time, Ms. Harris has observed Petitioner taking her employment with McCluney Prosthetics very seriously and dependably working four days per week (Tuesday-Friday) for a total of 20 hours each week. For the last year, Ms. Harris has been able to trust Petitioner as never before and can finally depend on Petitioner to properly oversee care of Ms. Harris's young children. Petitioner has been on felony probation since December 20, 1994, the date of her last conviction. According to a January 7, 1998, letter from her Department of Corrections Probation Officer of nearly four years, Petitioner has reported in a timely fashion and has consistently remained in compliance with the standard conditions of her probation. As of the date of the letter, Petitioner also had completed every special condition of her probation, with the exception of her monetary obligations. Her probation was due to terminate December 19, 1999, provided she continues as she has and also completes her monetary obligations. However, Petitioner had, in fact, completed her monetary obligations under the terms of her probation prior to formal hearing herein on April 7, 1998, and her probation officer intended to request the court to terminate her supervision early. His April 7, 1998, letter stated: "I wish I had one of her (Petitioner) for each of the 135 offenders I supervise. She's a great case, and truly wants to proceed with her life." Ms. Harris and Mr. Warren McCluney, each of whom testified at formal hearing, were adamant that no one would suffer if an exemption were granted so that Petitioner could work in her chosen field of humanitarian care.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order granting Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 18th day of May, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1998. COPIES FURNISHED: Blondell Daniels 112-B Northeast 42nd Place Gainesville, Florida 32609 Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
