The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Community Health Charities of Florida (CHC), is entitled to an award of attorney's fees and costs as a "prevailing small business party" pursuant to Section 57.111, Florida Statutes (2008), by being a prevailing small business party in the underlying case of Community Health Charities of Florida, et. al v. Florida Department of Management Services, DOAH Case No. 07-3547, Recommended Order February 29, 2008; Final Order May 29, 2008. Also, at issue is whether the Respondent Agency's actions, with regard to the underlying case, were substantially justified or whether special circumstances exist which would render an award of attorney's fees and costs unjust.
Findings Of Fact This cause arose upon the filing of a motion or petition for attorney's fees and costs on July 22, 2008, by the Petitioners, CHC and the Charities (the American Liver Foundation, Cystic Fibrosis Foundation, Crohn's and Colitis Foundation, Prevent Blindness Florida, Children's Tumor Foundation, March of Dimes, Lupus Foundation of America, Florida Chapter, Florida Hospices and Palliative Care, Hemophilia Foundation of Greater Florida, National Parkinson Foundation, American Diabetes Association, Leukemia and Lymphoma Society, American Lung Association, ALS Association, Alzheimer's Association, Juvenile Diabetes Research Foundation, Arthritis Foundation, Florida SIDS Alliance, Sickle Cell Disease Association of Florida, Easter Seals Florida, St. Jude Children's Research Hospital, Muscular Dystrophy Association, Nami Florida, National Kidney Foundation, National Multiple Sclerosis Foundation, Huntington's Disease Society of America, and Association for Retarded Citizens). This attorney fee and cost motion was filed in connection with the above Charities having received distribution of undesignated contributions from the 2006 Florida State Employees' Charitable Campaign (FSECC). The Charities made application for the funds and then contested the initial decision of the Steering Committee charged with determining distribution of undesignated contributions (by fiscal agent area). Ultimately, after obtaining a Writ of Mandamus from the First District Court of Appeal, requiring an administrative proceeding and hearing before the Division of Administrative Hearings on the contested claims, the Charities received additional distribution of undesignated contributions. Those additional distributions represent an additional benefit the Charities received upon the entry of the Recommended Order and the Final Order in the underlying proceeding. Therefore, one Petitioner, CHC, in the motion for attorney's fees and costs asserts that it is thus a prevailing party and a small business for purposes of Section 57.111, Florida Statutes, and is entitled to an award of attorney's fees and costs. The Respondent is an Agency of the State of Florida with authority to establish an maintain the FSECC.1/ It administers the decision-making process involving distribution of undesignated funds and issued the Final Order in the original proceeding. The attorney fee and cost proceeding was initially assigned to Administrative Law Judge Charles Adams. Thereafter the case was re-assigned to Administrative Law Judge T. Kent Wetherell, II. He issued an Order, sua sponte, on July 29, 2008, instructing the Petitioners to show cause why the case should not be held in abeyance pending disposition of the appeal of the Final Order in Community Health Charities of Florida v. State of Florida, Department of Management Services, 1D08-3126, the appeal before the First District Court of Appeal. The Petitioners filed a response to the Order to Show Cause stating, in essence, that the issues preserved for appeal involved discreet claims under Section 120.56(4), Florida Statutes. The parties agreed that the portions of the Final Order in the underlying proceeding which granted undesignated fund distributions to the Charities were separable, and not the subject of the appeal to the First District Court of Appeal in the above-cited case. The parties thus stipulated that the case could proceed on the matter of fees and costs, notwithstanding the pending appeal. An Order was entered by Judge Wetherell on August 11, 2008, based upon the responses to the Order to Show Cause. The Order references the parties' agreement that the case could go forward notwithstanding the pending appeal of the Final Order in the underlying case and then, significantly, Judge Wetherell made the following finding: "a closer review of the motion [the motion seeking the award of attorney's fees and costs] reflects that the only Petitioner alleged to be a prevailing small business party entitled to an award of fees under that statute [Section 57.111, Florida Statutes] is Community Health Charities of Florida." Judge Wetherell thereupon proceeded to order that the case style be amended to identify Community Health Charities of Florida (CHC), as the "only Petitioner in this fee case." The Petitioner, CHC, is a Florida non-profit corporation that employs less than 25 full-time employees and has a net worth of less than two million dollars. It is a "federation" under the FSECC Act. A "federation" is defined as an umbrella agency that supplies "common fund raising, administrative and management services to . . . charitable constituent member organizations. . . ." Fla. Admin. Code R. 60L-39.0015(1)(j). Federations were required to file with the Committee (the Steering Committee) a Direct Local Certification Form, describing the direct services that each member charity provided in the various fiscal agent areas. In this capacity, the Petitioner CHC represented 27 member charities in the 2006 charitable campaign. Charitable organizations that provide "direct services in a local fiscal agent's area" are entitled to receive "the same percentage of undesignated funds as the percentage of designated funds they receive." § 110.181(2)(e), Fla. Stat. (2006). CHC is not a provider of services or direct services. Therefore, it, itself, did not receive any undesignated funds. The charitable organizations named above, are the entities which received undesignated funds related to direct services they provided in local fiscal agents' areas. Some received them through the initial decision of the subject Steering Committee, and some after the underlying administrative proceeding was litigated through Final Order. On February 28, 2007, the Steering Committee, under the Respondent's auspices, conducted a public meeting in which it found the charities named above provided direct services in 18 percent of the fiscal agent areas in which they had applied. The Committee therefore denied Charities their share of undesignated funds in the remaining fiscal agent areas. That Committee decision was announced by memorandum of March 12, 2007, which provided the Petitioners with a point of entry to dispute the initial decision in an administrative proceeding. On March 30, 2007, the Petitioners filed an Amended Petition which alleged that they had provided direct services in all the fiscal agent areas in which they applied for undesignated funds, and identified alleged deficiencies in the Committee's decision-making process. That Amended Petition was ultimately referred to the Division of Administrative Hearings for conduct of a formal proceeding, by Order of the First District Court of Appeal, requiring the Agency to refer the Amended Petition to the Division of Administrative Hearings. With the Amended Petition pending before the Division of Administrative Hearings, the Steering Committee called an unscheduled meeting on September 10, 2007, to further address the Petitioners' claims and re-visit the earlier decision denying some applications for undesignated funds. Thereafter, the Respondent changed its initial decision by increasing the percentages of fiscal agent areas where direct services were provided and undesignated funds awarded to the Petitioners, the Charities, as a result of the September 10, 2007, meeting. This percentage thus increased from 18 percent to 77 percent as a result of "additional review of material provided by Petitioners." The Respondent Agency ultimately rendered a Final Order that adopted the decision of the Statewide Steering Committee, approving 77 percent of the Petitioners' previous submittals, as well as the finding of the Administrative Law Judge with regard to the three additional member charities. The Respondent had maintained in the original proceeding that the Committee must limit its consideration to the Direct Local Certification Form. The Petitioners, on the other hand, argued that they were entitled to a de novo review of the Agency action before the Division of Administrative Hearings. Reserving ruling on that matter, Judge Adams permitted the Petitioners, at the Final Hearing, to introduce additional evidence of direct services provided in those fiscal agent areas in which their applications had been denied by the Committee. The issue of direct services was considered de novo before the Division. The judge considered not only the direct local services certification form, but also supporting evidence of direct services introduced by the Petitioners at the Final Hearing. On considering that evidence, the Administrative Law Judge found that three additional member charities, not previously approved by the Committee, had provided direct services, which entitled them to receive undesignated funds. The Final Order entered by the Respondent Agency adopted the Administrative Law Judge's ruling. No exceptions were filed to that Recommended Order, thus the Agency waived its appellate rights with respect to any issue it might have raised, and the Charities prevailed as to the relief they sought in the Amended Petition. In their affidavits filed with the Motion for Attorney's Fees and Costs on July 22, 2008, the attorneys Byrne and Hawkins, for the above-named Petitioners, stated that they were "retained" by those Petitioners, meaning all the above- named charities and also the Petitioner CHC. In the affidavits they stated that those Petitioners "incurred" the attorney's fees and costs to which the affidavits relate. As stated above, the attorney's fee Motion was filed and joined-in by all the above-named charities and CHC. The Petitioners in the underlying case, which was appealed to the First District Court of Appeal, were all the above-named charities and CHC. Nonetheless, the Petitioner CHC took the position at the hearing in this proceeding that an agreement or understanding existed with the affiliate charities, whereby CHC would bear the attorney's fees and costs on behalf of all the affiliate charities. CHC has an agreement concerning how revenue it receives is shared with its national office and member charities. CHC pays its national office a percentage of revenue. It sends money to the national office and the national office also sends an allocation of funds to CHC. CHC is a member of the Arlington, Virginia-based Community Health Charities of America. For the fiscal year beginning July 1, 2006, CHC withheld 25 percent of charitable donations from Florida employees to its affiliated charities as its fee. This is the maximum amount authorized by Florida law in order for it to participate in the FSECC. § 110.181(1)(h)1., Fla. Stat. (2006). In the 2006 campaign at issue, CHC did not file an application in its own name to the Steering Committee for receipt of undesignated funds. As Ms. Cooper testified "we did not apply." CHC received no allocation or award of undesignated funds either in the initial Steering Committee consideration process or as a result of the underlying proceeding through the Agency's Final Order. All the undesignated fund distributions were made to the charities themselves, who were the entities who filed applications to the Steering Committee seeking receipt of undesignated funds. The Steering Committee, which made the initial decisions about distribution of undesignated funds is composed of appointed volunteers. The members of the committee are not compensated and do not have support staff to assist them in their fact-finding review of applications concerning receipt of undesignated funds. The committee members personally review all applications. Review of the applications takes many hours by each member of the committee, much more time than is spent in actual committee meetings. The combined net worth and number of employees of some or all of the Charities, was not established. It was not established that the net worth of one or more of the charities filing this Motion for Attorney's Fees and participating as Petitioners in the underlying case, is less than two million dollars, nor that one or more of them have less than 25 employees. The legislature appropriated $17,000.00 dollars to DMS to administer the FSECC for 2006. Substantially more than that appropriated sum has been expended by DMS to administer the campaign. DMS has no insurance coverage which would pay attorney's fees and costs if they were awarded. DMS is also subject to at least a four percent budget "hold back" for the current fiscal year and is contemplating laying off employees in January 2009, due to budget reductions. If DMS is ordered to pay attorney's fees and costs to CHC, DMS will bill the fiscal agent, United Way, for payment of those amounts from the FSECC charitable contributions. Contrary to the situation with the Petitioner Charities, who made the original filing of the Amended Petition in the underlying case and were named as parties in the filing of the Motion for Attorney's Fees at issue in this case, CHC did offer evidence that its net worth was less than two million dollars and that it had less than 25 employees. Thus, it established this threshold for being considered a small business party. It is also true, however, that the Recommended Order from the Administrative Law Judge and the Final Order from the Agency in the underlying proceeding specifically make no mention of CHC as a prevailing party and award nothing of benefit to CHC, as opposed to the other actual charities, who filed the subject applications.
Findings Of Fact At all times here involved Theodore R. Johnson was a registered real estate salesman and managed the UFA office at DeLand, Florida. He has been a registered real estate salesman for more than 30 years. He was authorized to sign checks on the escrow account of UFA in DeLand. At all times here involved Roy Edwin Schaefer was a registered real estate salesman and an associate of Johnson at DeLand. At all times here involved Richard W. Goddard was a registered real estate broker and officer and Active Firm Member in UFA with offices in Orlando, Florida. He was the broker under whom Johnson and Schaefer worked. He supervises some 20 UFA branch offices in Florida north of Orlando. He visits the branch offices at frequent intervals (once or twice a week) and exercises general supervision over these offices headed by a salesman. At all times here involved United Farm Agency, Inc. was a corporate registered real estate broker and maintained a district office in Orlando, Florida. The practice of UFA, which was in existence in 1971 to allow salesmen who head branch offices to disburse funds from their escrow account, has been changed. Now the signature of the broker is also required before funds can be disbursed from the escrow account. On August 15, 1970 Schaefer obtained a listing agreement for UFA on property owned by Prentice L. and Vivian Glasgow in Pierson, Florida. This listing agreement provided, inter alia, that in the event there is a forfeiture of funds deposited, 1/3 of such forfeited funds would go to the seller and the balance paid to UFA as commission. By Deposit Receipt and Agreement for Sale dated July 9, 1971 (Exhibit 7) one Margaret C. Lord offered to buy the Glasgow property at the asking price and Glasgow accepted. Schaefer procured the buyer and the contract was drawn up in the UFA branch office in DeLand, apparently by Johnson and/or his secretary of some 30 years. During Schaefer's discussion with Mrs. Lord at her motel immediately prior to the drafting of the contract he observed some $4000 in cash she was carrying in her purse. At the time Lord signed the contract she put up $1500 by check and stated she would have an additional $6000 transferred to her account by her broker and would present the additional $6000 within two or three days. No one who participated in the preparation of the sales agreement doubted her intention and ability to produce the additional earnest money deposit. The contract and the $1500 deposit check was held by Johnson for several days and when the additional deposit promised by the buyer was not forthcoming Johnson deposited the $1500 in the UFA escrow account and forwarded a report of sale to UFA (Exhibit 14). By acknowledgment of sale letter dated July 20, 1971, UFA acknowledged Johnson's report of sale and a $7500 deposit. The contract provided buyer could take possession of the property July 17, 1971 and closing was set for October 11, 1971. Neither Johnson nor Schaefer were able to again contact Mrs. Lord. Shortly after the contract was executed the Glasgows were advised that only $1500 had been deposited. After Johnson had been unable to contact Mrs. Lord he advised Goddard that only $1500 had been deposited, and by memo dated October 18, 1971 (Exhibit 19) Goddard advised UFA's home office. The Glasgows were in the process of getting a divorce and Glasgow was anxious to consummate the sale. After checking several times with Johnson about the closing, Glasgow advised Johnson he needed money to move off the property (Glasgow's testimony) or that he needed money in connection with his divorce (Johnson's testimony). Early in the morning on August 25, 1971 Glasgow made an urgent request to Johnson for funds and Johnson wrote Glasgow a check for $500 on the escrow account because he, Johnson, did not have a personal check available at the time. The same morning Johnson obtained $500 from his wife and deposited this money in the escrow account. The escrow account was credited with $500 on August 25, 1971 and debited with $500 on August 31, 1971 when the check issued to Glasgow cleared. Johnson's testimony that he considered the $500 a personal loan to Glasgow was unrebutted and is supported by his deposit of a like sum in the escrow account as soon as the bank opened. Shortly after the contract was executed, but before the $1500 check was deposited, Schaefer, without Johnson's knowledge, delivered a copy of the contract to Glasgow. The contract provided, inter alia, that if either the seller or the buyer fails to perform his part of the agreement he will forthwith pay as liquidated damages to the other party a sum equal to 10 percent of the agreed price of sale. When Johnson's efforts to locate Mrs. Lord were unsuccessful and no response received to letters of August 28 and October 4, 1971, Johnson disbursed the balance of the funds in the escrow account on October 18, 1971. One check in the amount of $250 he paid to himself as reimbursement for his expenses in attempting to locate Mrs. Lord. The remaining $750 ($500 of the $1500 had already been given to Glasgow, but how the cash deposit of $500 made August 15 was withdrawn from the escrow account was not explained) was split between Johnson and UFA. After the transaction fell through Glasgow moved back on his property. By letter dated October 20, 1972 (Exhibit 8) Glasgow filed a complaint with the Florida Real Estate Commission in which he referred to the liquidated damages provision of the contract (10 percent of purchase price) and the $7500 down payment which he alleged UFA had in escrow and had not paid to him. The investigation followed which led to the complaint filed herein.
The Issue Whether or not the Respondent, Peter Van Wie Investments, Inc., and. Peter Van Wie its president, a licensed mortgage broker in the State of Florida, by placing deposited monies received from investors in savings account number 4-0011068 at the United States Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, said savings account being in the name of Peter Van Wie Investments, Inc. is 4. in violation of rule 3D-40.06(7), Florida Administrative Code (formerly Rule 3-3.06(7), Florida Administrative Code) , and thereby subjected to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing, and planning of the mortgage loans set forth in Exhibit "A" (of the Administrative Complaint) in violation of Section 494.08(5), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) , Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in Exhibit B (of the Administrative Complaint) in violation of Section 494.08(4) , Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4) Florida Administrative Code) and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, on or about March 12, 1975, received from Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development, and subsequently on April 1, 975, wrote a check to First National Resources. in the amount of $11,760.00 to pay for said promissory note and mortgage for Marie W. Neal, which on April 24, 1975, was returned by Lauderdale Beach Bank for non- sufficient funds in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida, Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to obtain for Marie W. Neal, a promissory note and mortgage or remit said funds for such promissory note and mortgage to her in violation of Section 494.05(1)(e) Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to account or deliver to Marie W. Neal after demand, said funds which came to $14,000.00 which were placed with the Respondent for purposes of investing in a promissory note and mortgage for land located in Dora Pines Development which funds had come into the hands of the Respondent which were and are not the property of the Respondent in which in law and equity the Respondent is not entitled to retain, in violation of Section 494.04(1) Florida Statutes, and thereby subjected Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to place, immediately upon receipt, funds in the amount of $14,000.00 received of Marie W. Neal into an escrow account, with an escrow agent located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida, in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjecting the Respondent to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes.
Findings Of Fact Peter Van Wie Investments, Inc. through the person of Peter Van Wie, its president, was a licensed mortgage broker in the State of Florida during the time period contemplated by the Administrative Complaint. The Respondent was issued said license on October 4, 1974. At a time when the Respondent's mortgage broker license was in effect, Peter Van Wie Investments, Inc. and/or Peter Van Wie deposited monies received from investors in a savings account number 4-0011068, at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida. This savings account was in the name of Peter Van Wie Investments, Inc. While operating as Peter Van Wie Investments, Inc., Peter Van Wie Investments, Inc. and/or Peter Van Wie paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04(04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging negotiation, selling, purchasing and planning of mortgage loans. These sales by Mr. Beck and Mr. Clarke are identified in the Exhibit "A to the Complaint and Petitioner's Exhibit "C" admitted into evidence during the hearing. Richard Clarke became a licensed mortgage broker in the State of Florida on December 19, 1973. Frederick Beck has never been licensed under Chapter 494, Florida Statutes. There was admitted into evidence in the course of the hearing, Petitioner's Composite Exhibit "B". The columns that are shown on the pages of the exhibit running horizontally represent in succession: the date, name of the investor, whether or not the investor was a Florida resident, the amount of the mortgage, the amount of commission paid, whether the note was in the file of the Respondent, whether or not the mortgage was in the file of the Respondent, whether or not the title insurance policy on real estate was in the file, the interest rate return for the investor, whether or not the arrangement was for interest only or interest and principal, and the name of the broker/developer. The facts which surrounded the transaction shown in Petitioner's Composite Exhibit "B" are as follows: An investor would be in contact with Peter Van Wie Investments, Inc. concerning the purchase of certain promissory notes and mortgage for land which were being offered by a developer/mortgagor. The investor made out a check to Peter Van Wie Investments, Inc. using the acronym PVWI, Inc. The money for purchasing the promissory note and mortgage was then held in the escrow account until Peter Van Wie Investments, Inc. received the promissory note and mortgage through an intermediary acting in behalf of the developer. The money that had been received from the investor stayed in the escrow account until the receipt of the promissory note and mortgage and then was removed in the entire amount and placed in the Peter Van Wie Investments, Inc. operating account. A percentage of the investment principal would then be deducted from the amount which had been placed in the operating account and the amount remaining after the percentage had been deducted would be forwarded to the intermediary, who would make a further dispersion of the proceeds to the developer. The percentage to be deducted from the investment principal amount was determined by prior negotiations between the intermediary, and Peter Van Wie investments, Inc. These percentage amounts deducted from the investment principal were characterized by the Respondent in the course of the hearing, as being a discount allowed by the intermediary for sales of the promissory notes and mortgages to the Respondent. This characterization by the Respondent is rejected and these percentage amounts are found to be fees or commissions charged by the Respondent, which are in excess of the maximum allowable fees or commissions on transactions, in that they are in excess of the amounts allowed under Section 494.08(4)) Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4), Florida Administrative Code). In connection with other allegations found in the Administrative Complaint, it has been shown that on March 12, 1975, the Respondent received from one Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development. Peter Van Wie, on April 18, 1975, wrote a check to First National Resources in the amount of $11,760.00 to pay for the promissory note and mortgage for Marie W. Neal. On April 24, 1975, the check that had been written to First National Reserves was returned by the Lauderdale Beach Bank, for non-sufficient funds. The Respondent's explanation of the reason for the non-sufficient funds is found in his Answer to the Administrative Complaint in paragraph 6. It is not clear from the record whether Marie W. Neal ever physically received a promissory note and mortgage; however, a promissory note and mortgage deed have been recorded in Lake County, Florida, in her favor. There was no proof that the person, Marie W. Neal, ever asked that the Respondent remit such funds she had paid for the promissory note and mortgage. Furthermore, there is no evidence to the effect that the Respondent failed to deliver to to Marie W. Neal after demand, the said $14,000.00 which came into the Respondent's hands, or which had been placed in the escrow account of the Respondent and from which the non-sufficient funds check had been written to First National Resources. By an exhibit attached to the Answer of the Respondent, it is shown that the $14,000.00 was placed in the escrow account so designated at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, on March 13, 1975.
Recommendation It is RECOMMENDED that the license of the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in Florida, be suspended for a period of one year in view of the violations which have been proven in the course of the hearing. DONE and ENTERED this 15th day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. Terry Rigsby, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Peter Van Wie, President Peter Van Wie Investments, Inc. 16 Winnebago Road Sea Ranch Lakes, Florida B. Paul Pettie 2314 E. Atlantic Boulevard Pompano Beach, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE, Petitioner, vs. Administration Proceeding Number 75-21 DOF-MB PETER VAN WIE INVESTMENTS, INC., Case No. 75-1512 and PETER VAN WIE, PRESIDENT, Respondent. /
The Issue The issue is whether Petitioner has proved that Respondent employed the requisite number of employees to establish jurisdiction in the Florida Commission of Human Relations over an alleged claim of employment discrimination against Respondent.
Findings Of Fact South Florida Business Ventures, Inc. (SFBV) was incorporated about ten years ago. For the past five years, SFBV has provided telemarketing services for "Ramada Plaza Resorts." These services provide substantially all of the revenue of SFBV. For this case, "Ramada Plaza Resorts" is SFBV. A corporation known as "Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc." (RPR, Inc.) is in the business of selling timeshare units. The tradename "Ramada Plaza Resorts" enjoys wider use and not merely by RPR, Inc. or the legal owner of the tradename, if different from RPR, Inc. However, for this case, "Ramada Plaza Resorts" does not refer to RPR, Inc., or the owner of the tradename. Petitioner earlier filed a charge of discrimination directly against SFBV, which the Commission has dismissed. Petitioner did not continue to prosecute that case after its dismissal, but has instead prosecuted this case against "Ramada Plaza Resorts." Regardless of the wisdom of abandoning the case against the proper legal entity and proceeding against a fictitious name, Petitioner's present claim, as a matter of fact, is against SFBV, doing business as "Ramada Plaza Resorts" or as sales agent of RPR, Inc. To avoid confusion, this Partial Recommended Order shall refer to Respondent simply as SFBV, and not as SFBV doing business as Ramada Plaza Resorts or as agent of RPR, Inc. During 2003 and 2004, RPR, Inc., entered into contracts with several telemarketers, not only SFBV. The role of SFBV was to sell to the public three- or five-night "vacations" to Orlando, Ft. Lauderdale, or Las Vegas--essentially providing potential timeshare purchasers to RPR, Inc., which would promote its timeshare units to the "vacationers" during their "vacations." At the end of each telemarketing call that resulted in a sale by SFBV, the telemarketers transferred the call to a call center operated in Ft. Lauderdale by RPR, Inc., where a person employed by RPR, Inc., confirmed the sale and the accuracy of the material representations made by the telemarketer. In June 2004, Petitioner saw a newspaper advertisement seeking a receptionist. The advertisement states in part: "Ramada Plaza Resorts Industry leader hiring . . .." Petitioner telephoned the number listed, which belonged to SFBV, and was given an interview at an office in Boynton Beach, which was the headquarters of SFBV. Nothing in the advertisement mentioned SFBV. The office building to which Petitioner was directed bore a sign, "Ramada Plaza Resorts." Entering the office, which bore no sign indicating that it was the office of SFBV, Petitioner asked for Kelly Mincey, as she had been instructed to do by the person with whom she had spoken on the telephone. SFBV employed Ms. Mincey as its administrator. Among her duties for SFBV was human relations, including the hiring of secretaries. Ms. Mincey has worked for SFBV for four years. During the interview, Ms. Mincey explained to Petitioner that the receptionist was required to answer telephone calls, perform data entry, and fax memos to the Ft. Lauderdale office. Specifically, Ms. Mincey directed Petitioner to answer the telephone, "Ramada Plaza Resorts. How may I direct your call?" In entering data, Petitioner inputted the identification number for each buyer. In faxing memos to Ft. Lauderdale, Petitioner's testimony did not establish whether these documents went to SFBV's Ft. Lauderdale office or RPR, Inc., whose main office was in Ft. Lauderdale. Ms. Mincey gave Petitioner an employment application. It was a form that did not bear the name of the employer. After examining the completed application and performing the job interview, Ms. Mincey offered the job to Petitioner, who accepted it and, shortly after the interview, began working at the Boynton Beach office of SFBV. SFBV employed Petitioner. SFBV issued her payroll checks, which bore the name of SFBV. Petitioner's W-2 form bore the name of SFBV as her employer. Any claim of Petitioner that she was employed by some other entity alone or in conjunction with SFBV is unsupported by the evidence. The evidence supports the subordinate finding of a sales agency relationship between SFBV and RPR, Inc., so as to support the ultimate finding that "Ramada Plaza Resorts," as used in this case to identify Respondent, means SFBV. However, the evidence is not sufficient to find an employment agency relationship for the purpose of finding that Respondent was employed by RPR, Inc., or the owner of the tradename, or co-employed by RPR, Inc., or the owner of the tradename. In any event, such evidence would be irrelevant anyway because of the absence of evidence as to the number of employees, during 2003 or 2004, of RPR, Inc., or the owner of the tradename. At various times, SFBV operated offices in Boynton Beach, Delray Beach, West Palm Beach, and Ft. Lauderdale. The Ft. Lauderdale office, which was actually in Oakland Park, was open from September through December 2004. SFBV concedes that it employed Warren Izard as president, Kirk Izard as vice-president, Gabriel Izard as an operations employee, Ms. Mincey, and eight receptionists at the four offices operated during 2004. SFBV thus employed these 12 employees in 2004. The jurisdictional dispute centers around the proper classification of two other categories of workers: the persons making the telephone calls and their sales managers. SFBV contends that these persons were independent contractors of SFBV, and Petitioner contends that they were employees of SFBV. A third classification of worker--general manager was restricted to one person, Enrico Merada, so, even if he had been an employee, the total number of employees would still have been less than the jurisdictionally required 15--thus, his status is irrelevant. During 2003 and 2004, 25-100 telemarketers worked at SFBV offices at any given time. However, it is unnecessary to determine whether the telemarketers were employees of SFBV. SFBV employed more than two sales managers during 2004 so that, if they were determined to have been employees, the jurisdictional prerequisite of 15 employees over 20 calendar weeks would have been satisfied. The evidentiary basis for characterizing the sales managers as employees is largely undisputed while the evidentiary basis for characterizing the telemarketers as employees would require discrediting the testimony of SFBV's witnesses, who claimed that the telemarketers were not required to work specific shifts. Two sales managers worked at each of the four offices during 2004. At times during 2004, a total of eight sales managers worked at SFBV's offices. There was little turnover among sales managers. Mr. Merada supervised these sales managers, who, in turn, supervised the telemarketers. Interestingly, Ms. Mincey twice characterized the sales managers as employees of SBFV, distinguishing them from the telemarketers, whom she described as independent contractors. SFBV employed the sales managers and receptionists in pairs because it needed one person in each position at each office for each of the two shifts that it ran daily: a day shift and a night shift. SFBV strictly controlled the work of the sales managers, evidently in an effort to avoid misrepresentations by the telemarketers to purchasers. As required by SFBV, sales managers provided scripts to telemarketers, who were required to stick to the scripts and prohibited from certain acts, such as uttering profanities. As required by SFBV, sales managers provided telemarketers with rebuttals for certain responses from potential buyers and guidelines for what could be said. As required by SFBV, sales managers informed telemarketers that they could make no personal calls and could not sell for other companies while telemarketing for SFBV. To ensure that telemarketers complied with these rules, as required by SFBV, sales managers randomly listened in on calls made by telemarketers. As required by SFBV, sales managers helped telemarketers with the paperwork following sales and sometimes telemarketed directly to potential buyers. SFBV paid the sales managers weekly with SFBV checks and required that they perform their job duties, which included hiring and firing telemarketers, at the SFBV office to which they were assigned and during the shift to which they were assigned. SFBV paid the sales managers based on total sales, so that each sales manager made the same amount during the same pay period, provided they were scheduled for, and actually worked, the same number of shifts. Even if SFBV had operated only three offices, thus with six receptionists and six sales managers, SFBV would have employed 16 employees, if the sales managers were employees. Although at times SFBV may have had only one sales manager at an office, the evidence is clear that, during substantial parts of 2004, including at least 20 weeks, SFBV employed at least six sales managers and six receptionists, and, for the last 17 weeks of 2004, it employed eight sales managers and eight receptionists. In its proposed recommended order, SFBV states: "SFBV sometimes will monitor a Direct Seller's selling pitch " This statement implies an employer-employee relationship between SFBV and the person monitoring the calls of telemarketers, and these employee-monitors were the sales managers. A few lines later, SFBV baldly asserts that sales managers were also "Direct Sellers, not employees." But the contrasts that SFBV draws between sales managers and telemarketers suggest otherwise. Accepting strictly for the sake of discussion SFBV's characterization of its telemarketers, they were not required to work specific shifts, but sales managers had specific shifts for which they had to be in the office to monitor the calls of, and help, the telemarketers. Telemarketers were paid strictly on the basis of what they sold, but sales managers were paid on the basis of the sales during the shifts that they worked. This means that the compensation of sales managers was tied directly to the time that they were in the office working, as opposed to the compensation of the telemarketers, whose pay was not so time- dependent. The effect of this difference is obvious upon consideration that the sales managers were paid equally, if they worked an equal number of shifts, but the telemarketers were paid based on sales, not at all on the amount of time they spend working. Also, there was much churning of telemarketers, unlike the situation with sales managers. And the sales managers had a stricter dress code than did the telemarketers. For both sales managers and telemarketers, SFBV supplied the telephone and office equipment, including computers to automatically dial prospective purchasers. All of this equipment was necessary for the work to be performed. For both sales managers and telemarketers, SFBV provided the names and telephone numbers of potential buyers to be called--also crucially important to the success of the telemarketing effort. The only thing that some telemarketers routinely provided were telephone headsets, which were not necessary to perform their duties. In general, SFBV did not provide fringe benefits to sales managers. But the telemarketing work that they supervised and occasionally performed provided substantially all of the revenue of SFBV. Also, SFBV tightly governed the means by which the sales managers performed their duties. SFBV structured its contract and withholding and reporting practices so as to maximize its prospects for regulatory characterizations of its relationships with telemarketers and sales managers as those of employer and independent contractor, not employer and employee. However, at least as to the sales managers in the context of the jurisdictional requirements of the Act, these practices did not reflect the economic realities of the employer-employee relationship that actually existed between SFBV and its sales managers.
Conclusions For Petitioner: John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No. 605 South Miami, Florida 33143 For Respondent: Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
Recommendation RECOMMENDED that the Florida Commission on Human Relations enter a Partial Final Order determining that it has jurisdiction over the claims of Petitioner against South Florida Business Ventures, Inc., doing business as Ramada Plaza Resorts or as sales agent of Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc., and take such additional action on the claims as is required by law. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No.605 South Miami, Florida 33143 Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
The Issue Whether or not Petitioner, James P. Appleman, "willfully" violated Subsections 106.021(3), 106.07(5), and Section 106.1405, Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause; and whether or not Petitioner, James P. Appleman, "knowingly and willfully" violated Subsections 106.19(1)(c) and (d), Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, record of proceedings, and the facts agreed to by the parties in the Joint Pre-hearing Stipulation, the following Findings of Fact are made: In 2000, Petitioner was reelected to the office of State Attorney, Fourteenth Judicial Circuit. Prior to his reelection in 2000, Petitioner had been elected to the same office in 1980, 1984, 1988, 1992, and 1996. Petitioner, on February 1, 1999, signed a Statement of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. During the 2000 campaign, Petitioner made the following purchases using his personal funds in the form of cash, check or charge upon his personal credit card: a. Purchase 1: 7/12/99 Down payment/purchase of vehicle- $525.00 b. Purchase 2: 7/12/99 Purchase of vehicle/tax and title-$602.85 c. Purchase 3: 1/07/00 Bay Pointe Properties-$100.35 d. Purchase 4: 1/13/00 Delchamps Liquors-$58.50 e. Purchase 5: 1/22/00 Delchamps Liquors-$135.10 f. Purchase 6: 1/22/00 Cafe? Thirty A-$144.11 g. Purchase 7: 1/30/00 Pineapple Willy's-$17.45 h. Purchase 8: 5/05/00 Skirt/Jones of New York-$104.00- blouse/Jones of New York-$63.00 i. Purchase 9: 5/09/00 Tie/Dillards-$30.00-tie/Dillards- $40.00-misc. Big & Tall/Dillards- $8.75 j. Purchase 10: 5/23/00 Blazer/Polo Store-$199.99-short sleeve shirt/Polo Store-$39.99- short sleeve shirt/Polo Store- $39.99-short sleeve shirt/Polo Store-$39.99-shorts/Polo Store- $29.99 k. Purchase 11: 5/05/00 Casual bottoms/Brooks Brothers- $34.90-casual bottoms/Brooks Brothers-$34.90 casual bottoms/Brooks Brothers-$34.90 l. Purchase 12: 5/05/00 Shorts/Geoffrey Beene-$24.99- shorts/Geoffrey Beene-$24.99 m. Purchase 13: 5/05/00 Sport coat/Dillards-$195.00 n. Purchase 14: Telephone expense-$23.49 o. Purchase 15: 8/11/00 Tie down/Wal-Mart-$19.96-security chain/Wal-Mart-$19.26 p. Purchase 16: 8/11/00 Trailer hitch ball-$16.99 q. Purchase 17: 8/12/00 Event admission-$60.00 r. Purchase 18: 8/23/00 Liquor purchase/Delchamps-$37.41 s. Purchase 19: 8/30/00 Gas purchase/Shop a Snack-$20.00 t. Purchase 20: 8/30/00 Event admission-$40.00 u. Purchase 21: 8/30/00 Event admission/DEC-$15.00 v. Purchase 22: 8/26/00 Sign charge-$20.64 w. Purchase 23: 8/30/00 Auto insurance charge-$100.00 x. Purchase 24: 9/02/00 Gas purchase/Happy Stores-$34.00 y. Purchase 25: 9/02/00 Campaign staff/meal/food-$140.00 z. Purchase 26: 9/04/00 Ice purchase/Winn Dixie-$6.36 aa. Purchase 27: 9/05/00 Gas purchase/Swifty Store-$25.00 bb. Purchase 28: 9/06/00 Meal purchase/ St. Andrews Seafood House-$27.52 cc. Purchase 29: 9/08/00 Posthole digger-$42.90 dd. Purchase 30: 9/08/00 Lunch for sign crew-$20.14 None of these purchases were individually listed on Petitioner's Campaign Treasurer's Reports. Petitioner was reimbursed for each of the above- referenced expenditures by a check written on the campaign account, which was listed as an expenditure on Petitioner's Campaign Treasurer's Reports filed with the Division of Elections as follows: Date Name and Address of Person Receiving Reimbursement Purpose Amount 07-17-99 Appleman, Jim PO Box 28116 Panama City, FL 32411 02-11-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Vehicle Expenses Reimb. Cmpgn. Expenses $1,127.85 $830.81 06-10-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 08-07-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Expenses Reimburse vehicle & Phone exp. $1,000.00 $400.00 08-30-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 09-08-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimbursement/ Campaign Expense Reimbursement Camp. Expense $670.51 $295.92 On July 18, 2000, a campaign check for $140.99 was written to Winn Dixie. This check was reported on Petitioner's Campaign Treasurer's Report with the purpose listed as being "Campaign Social Supplies." The Winn Dixie purchase included the following items: A cat pan liner. 4 cans of cat food. A box of dryer sheets. A package of kitty litter. f. A jug of laundry detergent. The total cost of these items was $33.88. Petitioner signed all of his Campaign Treasurer's Reports, certifying as to their accuracy. The July 18, 2000, purchases at Winn Dixie were made by Mrs. Appleman, Petitioner's wife, and were a result of an inadvertent error. Immediately realizing that she had purchased personal items with campaign funds, she brought the matter to Petitioner's attention. Petitioner took possession of the Winn Dixie cash register receipt for the purchases; on the receipt he circled the inappropriate purchases with a pen, noted the total amount of inappropriate purchases on the receipt adding his initials, submitted the cash register receipt to his campaign treasurer, and several days later wrote a check reimbursing the campaign for the inappropriate purchases. During the campaign, Petitioner made 30 purchases listed in paragraph 3, supra, with personal funds, i.e., cash, personal check, or personal credit card, for which he provided receipts, and sought and received reimbursement from campaign funds by campaign check. These 30 purchases were not individually reported as expenditures on Campaign Treasurer's Reports during the reporting periods during which the purchases were made, but were reported as reimbursements as reflected in paragraph 4, supra. No evidence was presented that suggested that Purchases 3-7, Purchase 14, Purchases 17-22, or Purchases 24-30 listed in paragraph 3, supra, were not for campaign-related purposes. During the April 1 through June 30, 2000, campaign reporting period, Petitioner purchased 16 items of clothing (listed in paragraph 3, supra, as Purchases 8-13) for which he received reimbursement from campaign funds by campaign check. Petitioner and his wife testified that these items of clothing were used exclusively for campaign functions and purposes. Admittedly, each of the items of clothing could be used for non- campaign functions and purposes. However, the Campaign Treasurer's Reports reflect that in excess of $1,100 of "campaign shirts" were purchased during the campaign, supporting Petitioner's contention that he, his wife and campaign workers were all attired, while campaigning, in a color-coordinated "uniform of the day": red shirts, and tan/khaki trousers or walking shorts. This is further supported by photographs admitted into evidence. I find credible and accept the testimony of Petitioner and his wife that the items of clothing in the questioned purchases were used exclusively for campaign functions and purposes and not to "defray normal living expenses." During the August 12 through August 31, 2000, campaign reporting period, Petitioner purchased the following items for which he received reimbursement from campaign funds by campaign check: trailer hitch ball, trailer security chain, and sign tie-downs (listed in paragraph 3, supra, as Purchases 15 and 16). These three items were clearly used for campaign purposes and not to "defray normal living expenses." On August 30, 2001, Petitioner received a campaign check from the campaign treasurer reimbursing him for several campaign expenses he had paid. Among these campaign expenses, Petitioner sought reimbursement for $100 for "auto insurance" (listed in paragraph 3, supra, as Purchase 23). From the onset of his campaign, Petitioner had consistently either paid his automobile liability insurer, United Services Automobile Association, directly with a campaign check or sought reimbursement for payments he personally made for liability insurance on his personal vehicle or the "campaign Jeep" for automobile liability insurance cost attributable to the use of the motor vehicles in the campaign. Automobile liability insurance expense is a legitimate campaign expense and can reasonably be considered an actual transportation expense exempt from the statutory prohibition against payments made to "defray normal living expenses." On July 12, 1999, Petitioner purchased a 1997 Jeep to be used as a campaign vehicle (the down payment, tax and tag are listed in paragraph 3, supra, as Purchases 1 and 2); thereafter, loan payments to Tyndall Federal Credit Union and automobile liability insurance payments to United Services Automobile Association for the campaign vehicle were paid by the campaign treasury. On December 7, 1999, the 1997 Jeep was sold/traded to a third party for a 1999 Honda which was not used as a campaign vehicle. The Tyndall Federal Credit Union lien was transferred to the 1999 Honda. After December 7, 1999, the 1999 Honda was driven by Petitioner's adult stepdaughter. At the time of the transfer of the vehicles, Petitioner and his wife agreed that she would reimburse the campaign $800 which was determined to be the value lost by the campaign when the 1997 Jeep was traded. Petitioner later determined that he should reimburse the campaign an additional $525, the amount of the down payment paid when the 1997 Jeep was purchased in July 1999. On June 2, 2000, Petitioner's wife tendered a personal check drawn on her personal account to the campaign account for $800, which was reported under an entry date of June 5, 2000, on the Campaign Treasurer's Report for the period ending June 30, 2000, as a "REF" made by Petitioner. On March 14, 2001, Petitioner tendered a personal check to the campaign account for $617. This included $525 for the 1999 Jeep down payment reimbursement and an automobile liability insurance refund. Prior to the June 5, 2000, "REF" entry on the Campaign Treasurer's Report, there had been no report reflecting the sale of the campaign vehicle. The sale of the 1999 Jeep should have been reported on the Campaign Treasurer's Report for the period ending December 31, 1999; it was not. Petitioner certified that he had examined the subject Campaign Treasurer's Report and that it was "true, correct and complete" when, in fact, it was not as it did not reflect the sale of the campaign vehicle or the failure of Petitioner to pay the campaign treasury either $800 or $1,325, the amount Petitioner ultimately determined the campaign treasury should have been reimbursed as reflected by his late reimbursements.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, James P. Appleman, violated Subsection 106.07(5), Florida Statutes, on one occasion and Subsection 106.19(1)(c), Florida Statutes, on one occasion and assess a civil penalty of $1,000 for the violation of Subsection 106.07(5), Florida Statutes, and a civil penalty of $2,400 for violation of Subsection 106.19(1)(c), Florida Statutes; and dismissing the remaining alleged violations of Chapter 106, Florida Statutes, against him as asserted in the Order of Probable Cause. DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2002. COPIES FURNISHED: David F. Chester, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello and Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid.
Findings Of Fact On December 20, 1989, the District Board of Trustees, Okaloosa-Walton Community College, issued an Invitation to Bid (ITB) for Phase I Construction of the OWCC-WUF Joint Use Campus. The total project was estimated to cost about $5,000,000.00. The funds for the project would come in large part from the Public Education Capital Outlay Funds appropriated by the legislature and passed into law in the State's budget and to a limited extent from the college's renovation fund. Up to the time of hearing, the legislature had appropriated $3,000,000.00 for the project. The college's renovation fund contained approximately $70,000.00. The board hopes that the additional funding needed for the project (approximately $2,000,000.00) will be appropriated by the legislature this summer. However, until the additional funds are appropriated, the Board, by statute, is prohibited from contracting for projects in excess of the amount of money which has been appropriated for such projects. See Section 235.42, Florida Statutes. Michael Richardson, of Bullock-Tice Associates Architects, Inc., was the architectural project manager. Each bidder was asked to provide a base bid and a separate bid on each of ten alternatives. Eight bids were submitted in response to the original solicitation. All eight bids were rejected. The bids were rejected because all eight bids for the base bid without the addition of any alternates exceeded the funds available for the project. The Board decided to rebid the project. The second ITB was issued on March 26, 1990. The second ITB was restructured in an effort to obtain a base bid within the amount of money which had been appropriated for the project. Alternates could then be added to the base bid until the funds ran out. Specifically, the project was revised to provide for a base bid and separate bids on six alternates. The base bid essentially provided for construction of a classroom (Building No. 3) and a utility plant. Alternates 1 and 2 provided for outside civil, electrical, and landscaping work related principally to the buildings covered by the base bid. Alternates 3 and 4 related principally to the construction of two additional buildings and landscaping related to those buildings. Alternates 1-4 added work to the project. Alternates 5 and 6 deleted certain work from the project. Paragraph 1A of the Instructions to Bidders required that: To receive full consideration, all bids must be executed and submitted in strict accordance with the "INSTRUCTIONS TO BIDDERS. Paragraphs 7C and 7D of the Instructions to Bidders required that: Unit Prices: Each bidder shall state in the schedule provided on the Form of Proposal the amount he proposes for each applicable Unit Price requested. Unit price amounts shall include all costs of material, labor, equipment, insurance, bonds, taxes, overhead and profit and shall be used for determining amounts to be paid for all additional work on the project. Credits for any work omitted shall be determined by Unit Price at the amount scheduled. The Owner reserves the right to reject any Unit Price if considered excessive or unreasonable, or to accept any and all such Unit Prices which may be considered fair and reasonable. Alternates: In order that the Owner may discern an alternative use or type of material, or an increase or decrease in the scope of the Project, such items will be defined as Alternates and will be specifically described by the Drawings and/or Specifications. Alternates will be listed in the Form of Proposal in such a manner that the bidder will be able to clearly indicate the sums that will be added to or deducted from the Base Bid. Alternates shall include all costs of materials, taxes, bonds, handling, overhead, and profits and the acceptance of any alternate shall be in strict accordance with applicable Specification Sections. At some point after the initial bid instructions were sent out, and prior to the bid opening, the project architect drafted and sent to bidders a document entitled "Clarification to All Bidders." This document stated: It is the intention of the Owner to award all add Alternates upon receipt of additional funding this Summer. Due to this circumstance, the determination of Low Bidder will most likely be based upon the Base Bid plus Alternate 1 through 4 and 5 & 6 if so desired. This procedure is in accordance with rules of the Florida State Board of Education for Educational Facilities. (emphasis supplied) No bidder challenged the clarification's inclusion in the specifications for the project. Bidders generally interpreted this "Clarification" to mean that the Board of Trustees intended to award a contract for the total project, and thus would make its determination of low bid based on the total sum of the bids for base bid and alternates 1-4. However, bidders were not uniform in their application of that language to developing their specific bids and were not uniform in their interpretation of whether the Board's method of award of the bid as set out in the clarification was guaranteed by the clarification's language. In other words, some bidders realized that the use of the words "most likely" in the clarification meant exactly what it said and was not a guarantee that the project would be awarded according to the method established in the clarification. Petitioner, on the other hand, at its peril ignored the words "most likely" and altered its normal method of calculating its bid. In any event, no bidder received any advantage over another bidder due to the clarification's issuance and no bidder was favored or discriminated against because of the clarification. All bidders received the clarification and reacted to it in the normal course of their businesses and prepared their bids according to those dictates. Six bids were received on the second ITB, including Jack Moore & Company, Inc. and Sharpe, Inc. The bids on the base bid and the various alternates were as follows: CONTRACTOR BASE BID TOTAL SEE ATTACHED EXHIBIT 1 Under the method of determining low bidder set out in the clarification, Jack Moore & Company was the low bidder. However, the Petitioner's bid, as well as all other bidders' bids, exceeded the amount of money that the Board had on hand for construction of the project. Therefore, the Board of Trustees felt that it could not award the contract according to the method set out in the clarification and examined the bids to determine the amount of construction which could be accomplished for the amount of money it had on hand ($3,000,000.00 from the legislature and $70,000.00 from the renovation fund). By using only the $3,000,000.00 from the legislature, Opus South would have been the low bidder on the base bid. However, by adding approximately $25,000.00 from the renovation fund, the college had enough money to award the base bid plus alternates 1 and 2. Money for alternates 3 and 4 was not available. The Board decided to award the base bid plus alternates 1 and 2. Sharpe, Inc. was the low bidder on the base bid plus alternates 1 and 2. The Board awarded the contract to Sharpe. Petitioner was approximately $100,000 over the amount bid by Sharpe on the base bid plus alternates 1 and 2. The Board's reasoning was not arbitrary or capricious in the award of the bid to Sharpe. Since the language of the clarification was not binding on the Board, the method used by the Board was within the specifications. Finally, there was no substantial evidence of fraud or collusion on the part of the Board in its award of the bid to Sharpe and no evidence was submitted that Sharpe was not responsive to the ITB. In fact, all the bidders responded to the exact same specifications, thereby affording the Board an exact comparison between the various bids submitted to it for the project. The only difference in the bids was in how each individual bidder calculated its bid to arrive at it's price. Such differences occur in all bid situations and do not serve to lessen the exact comparison of the bids on the specifications. Therefore, Sharpe, having presented the lowest and best bid, should be awarded the contract on the base bid plus alternates 1 and 2.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board enter a final order finding Sharpe, Inc., submitted the lowest and best bid and awarding the bid on the base bid plus alternates 1 and 2 to Sharpe, Inc. DONE and ENTERED this 13th day of July, 1990 in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 13th day of July, 1990.
Findings Of Fact Based upon the foregoing and in consideration of Pitts' failure to timely respond to Requests for Admissions, the following Findings of Fact are made in this matter: On or about December 12, 2007, J2J filed a form entitled, "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" with the Florida Division of Elections (the "Division"). The form designated Pitts as the chairman and treasurer of J2J. The Division then sent Pitts a letter dated December 14, 2007, providing directions concerning the filing of a Committee Campaign Treasurer's Report ("Report") by J2J in accordance with the campaign financing requirements set forth in chapter 106, Florida Statutes (2007). Pitts received the letter from the Division. By letter dated April 13, 2009, the Division notified Pitts that J2J had failed to file the Report which had been due on April 10, 2009. Pitts received the letter from the Division concerning the overdue Report. The Division sent a follow-up letter to Pitts dated April 27, 2009, concerning the delinquent Report. Pitts received the letter from the Division. As of the date of its Motion for Summary Final Order, the Division had not received the Report from Pitts. J2J is in violation of the campaign financing requirements for political committees in Florida. The Division deems Pitts' failure to file the Report for J2J to be a willful violation of the Florida campaign financing laws.
The Issue Whether Florida Power & Light Company (hereinafter referred to as "FPL") properly refused the request of Globe International Realty & Mortgage, Inc. (hereinafter referred to as "Globe") to supply electric service to the premises located at 808 Northeast Third Avenue, Fort Lauderdale, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Kenneth V. Hemmerle, Sr., is a real estate developer. Matthew Renda is a real estate and mortgage broker. Hemmerle and Renda have known each other since about 1986. At the suggestion of Hemmerle, in February of 1993, Renda, along with Hemmerle, formed Globe. At the time, Hemmerle was involved in a development project on the west coast of Florida and he wanted Renda, through Globe, to handle "the selling and so forth for the project." Globe was incorporated under the laws of Florida. The articles of incorporation filed with the Department of State, Division of Corporations (hereinafter referred to as the "Division of Corporations") reflected that: Renda was the president of the corporation; Hemmerle was its secretary; Renda and Hemmerle were the incorporators of the corporation, owning 250 shares of stock each; they also comprised the corporation's board of directors; and the corporation's place of business, as well as its principal office, were located at 808 Northeast Third Avenue in Fort Lauderdale, Florida (hereinafter referred to as the "808 Building"). Globe is now, and has been since its incorporation, an active Florida corporation. Annual reports were filed on behalf of Globe with the Division of Corporations in both 1994 (on April 19th of that year) and 1995 (on March 23rd of that year). The 1994 annual report reflected that Renda and Hemmerle remained the officers and directors of the corporation. The 1995 annual report reflected that Renda was still an officer and director of the corporation, but that Hemmerle had "resigned 9-2-93." Both the 1994 and 1995 annual reports reflected that the 808 Building remained the corporation's place of business and its corporate address. The 808 Building is a concrete block building with a stucco finish housing eight separate offices. The entire building is served by one electric meter. At all times material to the instant case, Southern Atlantic Construction Corporation of Florida (hereinafter referred to as "Southern") owned the 808 Building. Southern was incorporated under the laws of Florida in June of 1973, and administratively dissolved on October 9, 1992. Hemmerle owns a majority of the shares of the corporation's stock. The last annual report that Southern filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. From 1975 until September 6, 1994, FPL provided electric service to the 808 Building. Charges for such service were billed to an account (hereinafter referred to as the "808 account") that had been established by, and was in the name of, Hemmerle Development Corporation (hereinafter referred to as "HDC"). HDC was incorporated under the laws of Florida in 1975, and administratively dissolved on October 9, 1992. At the time of HDC's incorporation, Hemmerle owned 250 of the 500 shares of stock issued by the corporation. The last annual report that HDC filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. Following the administrative dissolution of the corporation, Hemmerle continued to transact business with FPL in the corporation's name, notwithstanding that he was aware that the corporation had been administratively dissolved. At no time has Renda owned any shares of HDC's stock or served on its board of directors. He and Hemmerle have served together as officers and directors of only two corporations: Globe and Hemmerle's Helpers, Inc. The latter was incorporated under the laws of Florida as a nonprofit corporation in March of 1992, and was administratively dissolved on August 13, 1993. Its articles of incorporation reflected that its place of operation, as well as its principal office, were located in the 808 Building. Pursuant to arrangements Renda and Hemmerle had made (which were not reduced to writing), Globe occupied office space in the 808 Building from March of 1993, through September 6, 1994 (hereinafter referred to as the "rental period"). Renda and Hemmerle had initially agreed that the rent Globe would pay for leasing the space would come from any profits Globe made as a result of its participation in Hemmerle's Florida west coast development project. Renda and Hemmerle subsequently decided, however, that Globe would instead pay a monthly rental fee of $300 for each office it occupied in the building. 1/ Globe (which occupied only one office in the building during the rental period) did not pay in full the monies it owed under this rental agreement. The office Globe occupied in the 808 Building was the first office to the right upon entering the building. It was across the lobby from the office from which Hemmerle conducted business on behalf of his various enterprises. Globe voluntarily and knowingly accepted, used and benefited from the electric service FPL provided to its office and the common areas in the building during the rental period. Under the agreement Renda and Hemmerle had reached, Globe was not responsible for making any payments (in addition to the $300 monthly rental fee) for such service. On July 26, 1994, the 808 account was in a collectible status and an FPL field collector was dispatched to the service address. There, he encountered Hemmerle, who gave him a check made out to FPL in the amount of $2,216.37. Hemmerle had noted the following on the back of the check: "Payment made under protest due to now [sic] owning [sic] of such billing amount to prevent discontinuance of power." The check was drawn on a Sunniland Bank checking account that was in the name of Florida Kenmar, Inc., (hereinafter referred to as "Kenmar"), a Florida corporation that had been incorporated in May of 1984, 2/ and administratively dissolved on November 9, 1990. (The last annual report that Kenmar filed with the Division of Corporations, which was filed on June 10, 1991, reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; and the corporation's principal office was located in the 808 Building.) Hemmerle told the field collector, upon handing him the check, that there were no funds in the Kenmar checking account. Nonetheless, the field collector accepted the check. FPL deposited the check in its account at Barnett Bank of South Florida. The check was subsequently returned due to "insufficient funds." On the same day that he was visited by the FPL field collector, Hemmerle telephoned Sandra Lowery, an FPL customer service lead representative for recovery, complaining about, among other things, a debit that he claimed had been improperly charged to the 808 account. As a result of her conversation with Hemmerle, Lowery authorized the removal of the debit and all late payment charges associated with the debit from the 808 account. Following the July 26, 1994, removal of the debit and associated late payment charges, the balance due on the account was $1,953.91, an amount that Hemmerle still disputed. In an effort to demonstrate that a lesser amount was owed, Hemmerle sent Lowery copies of cancelled checks that, he claimed, had been remitted to FPL as payment for electric service billed to the 808 account. Some of these checks, however, had been used to pay for charges billed to other accounts that Hemmerle (or corporations with which he was associated) had with FPL. As of August 29, 1994, the 808 account had a balance due of $2,387.47. These unpaid charges were for service provided between March of 1993 and August 10, 1994. On August 29, 1994, Hemmerle showed Renda a notice that he had received from FPL advising that electric service to the 808 Building would be terminated if the balance owing on the 808 account was not paid within the time frame specified in the notice. Hemmerle suggested to Renda that, in light of FPL's announced intention to close the 808 account and terminate service, Renda should either apply for electric service to the 808 Building in Globe's name or relocate to another office building. Renda decided to initially pursue the former option. Later that same day, Renda telephoned FPL to request that an account for electric service to the 808 Building be opened in Globe's name. Gigi Marshall was the FPL representative to whom he spoke. She obtained from Renda the information FPL requires from an applicant for electric service. During his telephone conversation with Marshall, Renda mentioned, among other things, that Globe had been a tenant at the 808 Building since the previous year and that it was his understanding that FPL was going to discontinue electric service to the building because of the current customer's failure to timely pay its bills. Renda claimed that Globe was not in any way responsible for payment of these past-due bills. From an examination of FPL's computerized records (to which she had access from her work station), Marshall confirmed, while still on the telephone with Renda, that the 808 account was in arrears and that FPL had sent a disconnect notice to the current customer at the service address. Marshall believed that, under such circumstances, it would be imprudent to approve Globe's application for electric service without further investigation. She therefore ended her conversation with Renda by telling him that she would conduct such an investigation and then get back with him. After speaking with Renda, Marshall went to her supervisor, Carol Sue Ryan, for guidance and direction. Like Marshall, Ryan questioned whether Globe's application for service should be approved. She suggested that Marshall telephone Renda and advise him that FPL needed additional time to complete the investigation related to Globe's application. Some time after 12:30 p.m. on that same day (August 29, 1994), Marshall followed Ryan's suggestion and telephoned Renda. Ryan was on the line when Marshall spoke with Renda and she participated in the conversation. Among the things Ryan told Renda was that a meter reader would be dispatched to the 808 Building the following day to read the meter so that the information gleaned from such a reading would be available in the event that Globe's application for service was approved. At no time did either Marshall or Ryan indicate to Renda that Globe's application was, or would be, approved. Ryan referred Globe's application to Larry Johnson of FPL's Collection Department, who, in turn, brought the matter to the attention of Thomas Eichas, an FPL fraud investigator. After completing his investigation of the matter, which included an examination of the Broward County property tax rolls (which revealed that Southern owned the 808 Building), as well a search of the records relating to Globe, HDC and Southern maintained by the Division of Corporations, Eichas determined that Globe's application for service should be denied on the basis of the "prior indebtedness rule." Eichas informed Johnson of his decision and instructed him to act accordingly. Electric service to the 808 Building was terminated on September 6, 1994. As of that date, the 808 account had a past-due balance that was still in excess of $2,000.00. Although he conducted his business activities primarily from his home following the termination of electric service to the 808 Building, Hemmerle continued to have access to the building until March of 1995 (as did Renda). 3/ During this period, Hemmerle still had office equipment in the building and he went there on almost a daily basis to see if any mail had been delivered for him. It was his intention to again actively conduct business from his office in the building if electric service to the building was restored. Hemmerle (and the corporations on whose behalf he acted) therefore would have benefited had there been such a restoration of service. After discovering that electric service to the 808 Building had been terminated, Renda telephoned FPL to inquire about the application for service he had made on behalf of Globe. He was advised that, unless FPL was paid the more than $2,000.00 it was owed for electric service previously supplied to the building, service to the building would not be restored in Globe's name. Thereafter, Renda, on behalf of Globe, telephoned the PSC and complained about FPL's refusal to approve Globe's application for service. FPL responded to the complaint in writing. In its response, it explained why it had refused to approve the application. On or about November 15, 1994, the Chief of PSC's Bureau of Complaint Resolution sent Renda a letter which read as follows: The staff has completed its review of your complaint concerning Florida Power & Light's (FPL) refusal to establish service in the name of Globe Realty, Inc. at the above- referenced location. Our review indicates that FPL appears to have complied with all applicable Commission Rules in refusing to establish service. Our review of the customer billing history indicates that the past-due balance is for service at this location and not attributable to the judgment against Mr. Hemmerle for service at another location. The interlocking directorships of Globe International Realty & Mortgage, Inc. and Hemmerle Development, Inc. suggest that the request to establish service in the name of Globe Realty is an artifice to avoid payment of the outstanding balance and not a result of any change in the use or occupancy of the building. Thus, FPL's refusal to establish service is in compliance with Rule 25-6.105(8)(a), Florida Administrative Code. Please note that this determination is subject to further review by the Florida Public Service Commission. You have the right to request an informal conference pursuant to Rule 25-22.032(4), Florida Administrative Code. Should that conference fail to resolve the matter, the staff will make a recommenda- tion to the Commissioners for decision. If you are dissatisfied with the Commission decision, you may request a formal Administrative hearing pursuant to Section 120.57(1), Florida Statutes. After receiving this letter, Renda, on behalf of Globe, requested an informal conference. The informal conference was held on November 30, 1994. At the informal conference, the parties explained their respective positions on the matter in dispute. No resolution, however, was reached. Adopting the recommendation of its staff, the PSC, in an order issued January 31, 1995, preliminarily held that there was no merit to Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. Thereafter, Renda, on behalf of Globe, requested a formal Section 120.57 hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the PSC enter a final order dismissing Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1995. STUART M. LERNER 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 4th day of December, 1995.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
The Issue The issue in this case is whether the Department of Agriculture and Consumer Services (Department) acted in an arbitrary or capricious manner in rejecting all bids due to the vagueness of an addendum to bid specifications, and rebidding a contract for the installation and replacement of EDB water filters.
Findings Of Fact In September, 1986, Global submitted a bid to the Department for the installation and exchange of EDB water filters. The three lowest bidders, including Global, were disqualified. This bid was designated DOF-ADM-13. On or about November 14, 1986, the Department issued new bid specifications, and an invitation to bid designated DOF-ADM-29. Bidders were required to prequalify, but in other respects these specifications were essentially the same as the previous bid, DOF-ADM-13. The deadline for prequalification was December 2, 1986. Prior to the prequalification deadline, Global contacted the Department's contract manager, John Folks, and sought a change in the following prequalification requirement: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) Global did not have NWQA level V certified installers, and therefore, could not qualify under this provision. However, they did have Class I plumber's licenses, the highest designation in North Carolina, the company's headquarters. James Tate, Global's Vice President, testified that a Class I plumber's license is the same as a master plumber in Florida. The Department's contract manager approved and issued an addendum which constituted an amended bid specification on November 20, 1986, to permit a Class I plumber's license or equivalent, as follows: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification or a class one plumber's license or equivalent and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) On December 3, 1986, Folks determined that Global was qualified to bid. Global submitted its bid on DOF-ADM-29 in a timely manner, and upon opening of all bids on December 15, 1986, was determined to be the lowest qualified bidder. Global was informed on December 15, 1986, that it was the winning bidder. However, on December 19, 1986, the Department posted its tabulation on bid DOF-ADM-29 which rejected all bids "due to ambiguities in specifications and prequalifying requirements." The specific reason for this rejection was that upon review of the addendum by the Department's General Counsel at the time, Robert Chastain, it was determined that the addendum was vague and ambiguous. Specifically, Chastain and Folks concluded that the reference to Class I plumber's license was ambiguous since such a designation does not exist in Florida, and it was unclear whether such licensure in another state would allow a plumber to work in the four Florida counties affected by this bid. This ambiguity in the addendum had been brought to the Department's attention by a competing bidder, Continental Water Systems, Inc., after bids had been opened on December 15, 1986, through a threatened bid protest. In rejecting all bids, the Department was attempting to avoid a protest either by Continental, if the award was made to Global, or by Global, if the award was made to Continental. The Department was reasonably concerned with the creation of a health emergency if the purchase of EDB filters was delayed through the filing of a bid protest. It sought to avoid any such delay by rejecting all bids and rebidding this contract as DOF-ADM-41 which contained the following redrafted specification: All vendors must provide in writing proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a National Water Quality Association (NWQA) CWD-V certification or are a certified master plumber in the State of Florida and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers or are a certified plumber in accordance with county regulations and requirements in the State of Florida. (Emphasis Supplied.) The redraft of the prequalification specification in DOF-ADM-41 corrected the ambiguities created by the November 20, 1986, addendum to DOF-ADM- 29, as to both management and staff. Global's notice of protest of the Department's decision to reject all bids was timely filed on December 23, 1986, as acknowledged-by the Department's then General Counsel, pursuant to Rule 13A-1.006(3), Florida Administrative Code, which is presumed valid. On January 23, 1987, the Commissioner of Agriculture issued a Declaration of Emergency in order to be able to proceed with the rebid, DOF-ADM- 41, despite Global's protest of the rejection of all bids in DOF-ADM-29. This Declaration of Emergency was upheld in Global Water Conditioning v. Department of Agriculture, 521 So.2d 126 (Fla. 1st DCA 1987). The contract in DOF-ADM-41 was awarded in February, 1987, to Continental. The contract for the installation and exchange of EDB water filters is an on going project, and, with the exception of the prequalification changes referenced above, the specifications for bids D0F-ADM-13, 29 and 41 were essentially the same.
Recommendation Based on the foregoing, it is recommended that the Department enter a Final Order dismissing Global's protest to the rejection of all bids in DOF-ADM-29. DONE AND ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 26th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2642 BID Rulings on Global's Proposed Findings of Fact: This is not a proposed finding of fact, but a restatement of the issue in this case. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. 6-7. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 6. Rejected as irrelevant to the issue of whether the Department acted arbitrarily in rejecting all bids due to vagueness of the specifications. 10-16. Adopted in Findings of Fact 7 and 8. Rejected in Findings of Fact 8, 9, and 10. Rejected as cumulative. Adopted in Finding of Fact 13. Adopted in Finding of Fact 11. 21-22. Adopted in Finding of Fact 12. 23-26. Rejected as not based on competent substantial evidence in the record, and as irrelevant. Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 2. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative. Adopted in. Finding of Fact 5. Adopted in Finding of Fact 6. 9-12. Adopted in Findings of Fact 7 and 8. 13-17. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. 20-23. Adopted in Findings of Fact 9 and 10. 24-26. Rejected as irrelevant to the issue of whether the Department acted arbitrarily or capriciously in rejecting all bids due to ambiguities in the specifications. 27-28. Adopted in Finding of Fact 12. 29. Rejected as not based on competent substantial evidence, and as irrelevant. COPIES FURNISHED: James C. Barth, Esquire 433 North Magnolia Drive Tallahassee, Florida 32308 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory E. Horne, General Counsel Clinton H. Coulter, Esquire Mayo Building, Room 515 Tallahassee, Florida 32399-0800
