The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination based upon her race by the disciplinary actions imposed upon her by the Respondent, her employer, because of the alleged factual events depicted in the Charge of Discrimination and Petition for Relief.
Findings Of Fact Childhood Development Service, Inc. (CDS), is an agency that acts as a centralized administrator of programs for low- income children and families in a five (5) county area in central Florida. It provides educational services with its pre-kindergarten and Head Start programs and provides social services and referrals to needy program member-families. The Petitioner, Marilyn J. McNeely, is currently employed by CDS. Ms. McNeely is contesting several employment actions taken against her by the above-named employer, including unsatisfactory evaluations and suspensions. Specifically she filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), on July 7, 1995. She charged that the following three (3) actions had been taken against her and constituted racial discrimination because of her race, which is Black. Those actions were: On June 22, 1995, I was given an unsatisfactory evaluation by Sandra Rios. There are seven (7) Family Service Specialists: Two White, one Hispanic and four Blacks. The two Whites and the Hispanic received satisfactory evaluations. One Black (17 years service) initially received unsatisfactory, but had it upgraded after consultation. Three Blacks received unsatisfactory with no changes granted. On April 11, 1995, I was suspended on hearsay for removing records. My belongings were not checked. In fact, the files were never removed. On September 30, 1994, I was suspended for misuse of position. This came about because I was assisting in community affairs, and had nothing to do with my job. Twelve "Disciplinary Notices" had been given to Ms. McNeely since 1991, including four (4) suspensions lasting from one to ten days, and four (4) "Work Plans" which in essence consist of a written instructions and procedures for employee performance improvement. The Petitioner has received more than ten (10) formal evaluations, with scores ranging from a high of 7 on a scale of 1 to 10, to a low of 23 on a scale of 0 to 60, with a satisfactory rating on that scale being a rating of 30. The Petitioner received an overall rating of "satisfactory" on her most recent evaluation. On April 18, 1991, she was warned for using her position to obtain unauthorized, confidential client information. In the course of that warning she was informed that any further misuse of her position would result in a ten (10) day suspension or termination. She appealed this disciplinary action and it was affirmed by the Administrative Director at that time, Mr. Henry Whittier. Ms. Linda Foy became the CDS Executive Director shortly before learning, on September 23, 1994, that the Petitioner had solicited money from a physician in Ocala, Florida, on behalf of a local family who were facing eviction from their residence. In the course of this solicitation of funds from this private individual the Petitioner used her CDS position, name, and the CDS telephone number in the solicitation effort. The family for whom the Petitioner solicited the funds was not enrolled in a CDS program at that time or otherwise associated with CDS. In order to be eligible for social services offered by CDS, including referrals to other agencies that help needy families, a family must be registered with a CDS program. Ms. Foy investigated the Petitioner's actions in this incident and determined that they were unauthorized and inappropriate. It is not within the job requirements or authority of a CDS employee to request a cash donation for a family, even if that family was a CDS client family. If a CDS client family needed help with housing, CDS staff would confer with other agencies which might provide funds for housing or actually assist with providing housing. In the course of the solicitation effort the Petitioner left the physician and his office staff with the impression that the Petitioner was soliciting the funds for and on behalf of CDS. She informed them in the telephone call that she was calling from CDS and left her CDS office telephone number as a return call number. Ms. Foy, in conducting her investigation of the matter, obtained written statements from the doctor and his staff concerning the character and nature of the telephone solicitation. Ms. Thelma Griffith is the Head Start Director. Ms. Foy discussed this matter with Ms. Griffith in the course of her investigation and learned, during the course of her investigation, of Ms. McNeely's previous disciplinary action for misuse of position. Misuse of position is classified as a Group III offense by CDS policy. Disciplinary action for a second Group III offense ranges from a ten (10) day suspension without pay to termination of employment. Based upon the information she gathered in her investigation, Ms. Foy ultimately suspended the Petitioner for ten (10) days without pay. Ms. Griffith concurred in that suspension as being appropriate for the offense committed. At the time she made the decision to suspend Ms. McNeely, Ms. Foy was unaware that she was Black and only learned that she was Black when she met with Ms. McNeely to actually discuss the suspension. Ms. Foy did not take this disciplinary action against Ms. McNeely because Ms. McNeely is Black. In April 1995, the Petitioner's supervisor, Ms. Sandra Rios, told her supervisor Ms. Griffith, the Head Start Director, that certain confidential files assigned to Ms. McNeely were missing. The files, called "master files," contained confidential information regarding each child, such as abuse and health information about the children in the CDS programs. Head Start policy and regulations and CDS policies require that such master files be maintained in a strictly confidential manner and remain at the CDS offices at all times. Ms. Griffith directed Ms. Rios to "double-check" and ascertain that the files were missing. This was after regular business hours and Ms. McNeely had already left the building. After Ms. Rios again searched the location of the files she again informed Ms. Griffith that the files were indeed missing. Ms. Griffith instructed Ms. Rios to leave the Petitioner a note so that the Petitioner would know that both Ms. Rios and Ms. Griffith were aware that files were missing. Because the files were missing when they should have been locked up in the file cabinet the Petitioner was suspended for five (5) days by action of Ms. Rios. After consulting with Ms. Rios, Ms. Griffith concurred that the five (5) day suspension was appropriate for the offense of unauthorized removal of the confidential files. Ms. Griffith was aware that Ms. McNeely had been working on those files to bring them up to date. Ms. Griffith did not direct Ms. McNeely to take home any files and has never authorized an employee to take the confidential master files home to complete unfinished work on them. Master files are not the same as "classroom files," which can be taken from the CDS offices to a classroom site where a particular child is located. Ms. Griffith was unaware of any other instance where an employee had removed master files from CDS offices at the time the Petitioner was disciplined for doing so. Ms. Griffith is unaware of any employee who has ever since removed such confidential files from CDS offices. If she were so aware she would have promptly initiated appropriate disciplinary action. Jennifer Lund is the Human Resources Manager for CDS, and is also unaware of any employee who has ever removed master files from the CDS offices. It is her policy that such a violation be promptly brought to the appropriate supervisor's attention, with her recommendation for disciplinary action consistent with past practice. The Petitioner received a score of 25.5 out of a possible 60 on her May 16, 1995, annual evaluation. Ms. Rios, Ms. McNeely's supervisor, gave her this evaluation. After discussing the basis of the evaluation with Ms. Rios and reviewing documentation from events occurring that year, Ms. Griffith was satisfied that the evaluation was appropriate and accurate and she approved it. The Respondent's "EEO-1" (report) for 1994, reflects that the percentage of Black employees employed by the Respondent entity is almost three (3) times the percentage of Black employees in Marion County, Florida generally. Further 56.4 percent of CDS's work force is White, where as 87.2 percent of the general Marion County work force is White. Forty-Three and sixth tenths of a percent of the CDS work force is non-White according to this report, one of whom is Ms. Griffith.
Findings Of Fact The Respondent, Kenneth P. Casey, holds license number 346-04-69 authorizing him to fit and sell hearing aids in Florida. Mr. Casey is fifty-two years of age and has been in the hearing aid sales and service business for approximately twenty-three years. He has never been involved in any legal altercations with the Petitioner. Mr. Casey has been the Beltone hearing aid dealer in the Pensacola area for a substantial period of time until approximately November of 1979. On or about September 5, 1978, the Respondent sold to Mr. Henry Golden two hearing aids for the price of nine hundred twenty dollars. The Petitioner has alleged that, hen he sold the hearing aids to Mr. Golden, the Respondent promised him that he would hear as well with the hearing id as he did when he was connected to the "master testing machine" which determined the need for a hearing aid. Mr. Golden's own testimony, however, as corroborated by the Respondent's, established that the Respondent only told him that the hearing aids would perform as well as the testing machine "If they were made to the same specifications." The testimony of witness Behrends, the audiologist testifying on behalf of Petitioner, established the accuracy of the Respondent's statement and that generally hearing aids should perform as well as the testing machine if fitting and manufacture are correct. Witness Behrends amplified on this testimony by stating that fitting, tuning or "peaking-up" the performance of hearing aid sometimes takes as long as forty-five to ninety days during which time adjustments must typically be made. In any event, Mr. Golden was assured that his hearing aids would be delivered in approximately two to four weeks. In fact, however, it took six weeks to two months before the hearing aids arrived. Mr. Golden testified he could not hear any better with the hearing aids, so Mr. Casey returned them to the manufacturer to exchange for a new pair. Mr. Golden testified that Mr. Casey adjusted the hearing aids well and they fit well, but he was not satisfied with them and ultimately returned the hearing aids to Casey who returned his money in full. The Respondent did not charge Mr. Golden for the cost of ear molds or fitting the hearing aids. The Petitioner established, as indeed the Respondent acknowledged, that Casey failed to include the serial numbers and model numbers of the hearing aids on Mr. Golden's sales receipt. The Respondent states that this was because the hearing aids were not in stock hen ordered since Beltone would only send them to him on C.O.D. basis. This basis of dealing with the Beltone Corporation resulted from Mr. Casey's poor financial condition and instances of his not paying Beltone promptly for hearing aids in the past. Mr. Golden also demonstrated in his testimony that the Respondent never did promise him that the hearing aids would prevent deafness. There is no question, however, that the Respondent did not deliver the hearing aids when promised, although this was shown to be due to the poor payment record of the Respondent with the Beltone Corporation and its consequent reluctance to process orders until payment was received, rather than any intent by Casey to defraud the customer. On June 22, 1977, the Respondent received a down payment of three hundred seventy dollars from Mr. M. P. Bryant for two hearing aids that were to be delivered to Mr. Bryant within four weeks. Mr. Bryant never received his hearing aids. The Respondent established in an unrefuted way that they were never received by Mr. Bryant because Beltone Corporation would not ship to the Respondent since his credit had been suspended with that supplier. The Respondent acknowledged that he had not timely returned Mr. Bryant's money because he had been attempting to sell a piece of property in order to raise the money to refund. Before he could accomplish this, a judgement against him was entered on behalf of Mr. Bryant. In this instance, again, the Respondent did not put the model and serial numbers of the hearing aids on Mr. Bryant's receipt because he did not have the hearing aids in his possession when the sale was made due to his bad credit relationship with Beltone Corporation. On or about March 22, 1978, the Respondent sold a hearing aid to Robert Carr for the use of Mr. Carr's mother, Susie I. Carr. Her hearing had been tested by Mr. Behrends, the audiologist who testified on behalf of Petitioner, who had referred her to the Respondent for fitting of a hearing aid. On March 22, 1978, Mr. Carr gave a hundred dollar deposit to Mary Cobb who fitted hearing aids for Casey. The hearing aids were delivered on April 18, less than a month later. Mrs. Carr was unsatisfied with the performance of the hearing aids and so her son returned the aids to Mr. Casey on May 2, 1978, requesting a refund. Mrs. Carr did not seek to have the hearing aids adjusted or tuned for better performance prior to or turning them to the Respondent for a refund. It is significant that the contract that the Carr's entered into with the Respondent contained a provision that the hearing aid must be returned in three days in order for a refund to be received, but the Respondent ultimately refunded the money in full anyway, on August 7, 1978. In the case of the contract between the Carr's and the Respondent, the serial number of the hearing aid was entered. The audiologist testifying for the Petitioner, Mr. Behrends, was familiar with the Carr's case and stated that with proper manufacture and proper tuning and adjustment the hearing aids should perform as well as the client was able to hear on the testing machine. Ms. Carr's audiogram chart reveals that she had a high-frequency hearing loss and Behrends would have recommended the type of ear mold made for her by Casey, which appeared to be appropriately manufactured. Witness Mary Cobb worked for thirteen years with Mr. Casey as a licensed audiologist and was familiar with the Carr hearing aid purchase transaction, as well as Mr. Golden's problems. Mr. Golden came back a number of times for adjustment and still was not satisfied with his hearing aid and ultimately requested refund. This Petitioner's witness corroborated the Respondent's showing that financial problems in his business prevented prompt refunds in some cases and also resulted in failures to timely deliver hearing aids, rather than any intent on Casey's part to defraud customers. This directly resulted from Beltone's practice of sending his hearing aids C.O.D. instead of dealing with him "on account," with monthly invoicing, as they had in former times. Sometimes hearing aids were sent back to Beltone when Casey failed to pay C.O.D. charges. Ultimately, Ms. Cobb became the Beltone dealer approximately fifteen months prior to the hearing, since the franchise was taken away from Casey due to their financial altercations. This witness also established that, although it is not always possible to have a person hear as well with a hearing aid as with a testing machine, that on some occasions the customers hear better with the hearing aids than with the machine. On August 10, 1979, the Respondent sold a hearing aid to Ora Lee Johnson. Ms. Johnson testified for the Petitioner, and established that it took approximately five months to receive her hearing aid after that order date. During the interim, however, the Respondent lent her a hearing aid which she used satisfactorily until her's arrived. She had previously bought a hearing aid from the Respondent in 1975 and had been thoroughly satisfied. He had always effectively serviced her hearing aid without charge. He never made any representation to her that the hearing aid would prevent or cure her deafness. She has since bought another hearing aid from Mr. Casey, in October of 1980, and has always been happy with his service. The Petitioner did establish that the sales receipt for the hearing aid sold to Ms. Johnson did not have depicted thereon the brand and serial number. Mr. Frank Kraus signed a purchase order for a hearing aid from the Respondent on March 23, 1977. This was on a Friday and approximately on thee following Monday he became ill and was to be hospitalized. He therefore went to the Respondent's office to attempt to cancel the contract and be refunded his two hundred dollar deposit. The Respondent acknowledges that he did not refund Kraus' money, but contends this was because Kraus simply changed his mind about the purchase and had no problem with the hearing aid. Mr. Kraus and his wife as well, testified in a vague manner that the Respondent made an ill-defined representation to the effect that Kraus would probably be deaf in about six months. Mrs. Kraus was unable to testify that she remembered or recognized the Respondent when he was pointed out to her in the hearing room, although she contended he made such a representation. Mr. Kraus states he remembers the representation being made, but was unable to recall the times or dates or exactly what was said. Neither witness could testify regarding the context of the conversation from which this representation was allegedly made and Mr. Kraus acknowledged repeatedly that his memory was faulty and that he was in ill health. The Respondent vehemently denies making such a representation and the Petitioner's witness, audiologist Mary Cobb, as well as Virginia Gesselman testified that when accompanying the Respondent in sales presentations to customers, they never beard him make such a representation on other occasions. In short, Mr. and Mrs. Kraus' testimony, memory and recall of those events is not of sufficient clarity to establish that the Respondent made such a representation with the intent that they be so induced into purchasing a hearing aid, in the face of the contrary evidence. Witness Ralph Gray, the administrator of the hearing aid license program for the Petitioner, testified that he had received more complaints a out the Respondent than for most dealers (thirty-five complaints in thirteen years) . He testified, however, that not all of the complaints were justified and he was not able to testify which of the complaints were found justified after investigation. Other dealers' contracts typically show the same omissions of disclaimers, serial numbers or model number . Neither was Mr. Gray able to state whether the additional number of complaints received regarding the Respondent's business was due to a greater number of customers and more business volume than other dealers under his supervision. Virginia Gesselman, a former audiologist for the Respondent, corroborated testimony of the Respondent and Mary Cobb that Casey did not make a practice of telling clients that the client would become deaf unless he purchased a hearing aid and that most people she fitted with hearing aids said they could hear better with the hearing aids than they had with the testing apparatus, after adjustments were made. Witnesses Mary Dubuisson, Thomas Roberts and James Peaden, all have received excellent service from the Respondent and have considered him to have conducted his business with them in an ethical manner. The Respondent candidly admitted that his deliveries of hearing aids in some of these instances were late, due to his poor financial condition and the resultant difficulty in obtaining prompt delivery from the Beltone Corporation. He established that he was suffering a very turbulent personal life during these times, chiefly because his son had a problem with drug addiction which ultimately resulted in the breakup of his marriage, the loss of his home and the incurring of thousands of dollars in legal fees and hospitalization expenses. He has since been successfully engaged in reassembling his shattered personal life, has remarried and his present wife is a "good business woman" and is presently assisting him greatly in running his hearing aid sales and service business. He is recovering from his financial difficulties and has earned a profit in the last two years. He no longer has any problem in assuring customers of timely delivery. The Respondent denied he ever had any intent to defraud or misrepresent the facts and circumstances of a transaction to any of his customers.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED that the Respondent, Kenneth P. Casey, be found guilty of the charges contained in Counts IV, VI, VIII, X and XI of the Administrative Complaint and that he be issued a written, public reprimand by the Petitioner, and that his licensure be placed on probationary status for one (1) year, with the Respondent's customer records subject to monthly audit by the Petitioner's personnel to show that no similar violations occur. It is further RECOMMENDED that the Respondent be fined the sum of three hundred dollars, to be paid within thirty (30) days of the date of entry of the Final Order in this cause and that two hundred of the said three hundred dollar fine be suspended on the condition that the Respondent, within a like period of time, refund the two hundred dollar deposit paid him by Mr. Kraus. DONE AND ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, 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 23rd day of December, 1981. COPIES FURNISHED: Jon W. Searcy, Esquire District I, Legal Counsel Post Office Box 17389 Pensacola, Florida 32522 Antony E. Fiorentino, Esquire 105 South Navy Boulevard Pensacola, Florida 32507
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2013.
The Issue The issue is whether Petitioner may suspend Respondent for 30 days for sexual harassment.
Findings Of Fact Respondent has been employed by Petitioner since 1983. After six years' service as a bus driver, Respondent became a radio dispatcher. The radio dispatchers assign drivers and attendants to specific bus routes. In doing so, the dispatcher has no authority to deviate from a seniority-based list of drivers and attendants. Sandra Ann Welch has been employed by Petitioner since August 2001 as a bus attendant. A bus attendant helps the driver maintain order. In the year that Ms. Welch had worked at the depot at which Respondent worked, she and Respondent had had problems. Respondent once assigned Ms. Welch to a bus with wheelchair-bound students, but Ms. Welch expressed her dissatisfaction with the assignment. She complained about several of her assignments, even though they were all based on the seniority of the available attendants. For awhile, to avoid conflict with Ms. Welch, Respondent assigned her to a bus with unruly students, but no wheelchairs. However, shortly prior to the incident, Ms. Welch was removed from this assignment, which she had found satisfactory. Ms. Welch blamed Respondent for the loss of this assignment, but, with the start of the new school year, the assignment had come up for rebidding by other attendants and one with more seniority had bid for it. Ms. Welch returned to substituting for attendants who did not show up for work. On the morning of October 15, 2002, which is the date of the alleged incident, Respondent was working at his usual location in the radio dispatch room. In the small room with him were three other dispatchers, all of whom are females. After the bus runs that morning, Ms. Welch entered the dispatch room behind the desk of Lawanda Collins, another dispatcher who has been employed by Petitioner for 16 years. Ms. Welch stood next to Respondent's desk and spoke to him. Although only a few feet away from Ms. Welch, Ms. Collins never saw Ms. Welch bend over toward Respondent or scream. Ms. Collins never saw Respondent stick his tongue in Ms. Welch's ear, nor did Ms. Collins see Ms. Welch return to the dispatch room after her departure immediately after the alleged incident. The observations of Ms. Collins, or lack of them, contradict directly the testimony of Ms. Welch, who testified that Respondent placed his tongue in her ear while she was in the dispatch room talking to him after the bus runs on the morning of October 15, 2002, and Ms. Welch screamed. Likewise, Respondent denies Ms. Welch's claim. No witness saw the tonguing incident that Ms. Welch described. Ms. Welch's testimony is also undermined by her performance as a witness. When testifying, with apparent repulsion, about the tongue in her ear, Ms. Welch twice gestured, with a pained expression, to her right ear--once when she was testifying in Petitioner's case in chief and once when she was testifying in Petitioner's rebuttal case. However, she has consistently stated that Respondent placed his tongue in her left ear. Ms. Welch stumbled when she attempted to lay out the desks relative to the door that she entered. It was evident that she was not recalling the layout of the dispatch room, but was instead trying to make sure that the layout and her path were such that she would end up on the "correct" side of Respondent. Respondent's testimony is further undermined by what appears to be a financial incentive for her to establish the fact of the incident. Allegedly due to the incident, Ms. Welch has been out on paid leave since January 2003. Additionally, she was irritated at Respondent for what she thought was his role in removing her from a favored assignment shortly before the alleged incident. Ms. Welch's willingness to fabricate testimony about the alleged incident of October 15, 2002, undermines the credibility of her other testimony concerning sexual comments that Respondent supposedly made to her at other times while she was under his supervision. It is not as clear that Respondent never made these statements as it is that he did not stick his tongue in Ms. Welch's ear, but Petitioner has failed to prove that Respondent is guilty of sexual harassment of Ms. Welch on these other occasions.
Recommendation It is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order dismissing the Notice of Specific Charges against Respondent. DONE AND ENTERED this 22nd day of November, 2004, 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 22nd day of November, 2004. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northwest Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Madelyn P. Schere, Attorney for Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Manny Anon, Jr. Deputy General Counsel AFSCME Florida Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller license pursuant to provisions of Chapter 501, Part IV, Florida Statutes.
Findings Of Fact Petitioner is Gerovicap Pharmaceutical Corporation, Inc., a Nevada Corporation. Petitioner was incorporated in 1988. Petitioner has no offices in any state other than Nevada. Petitioner has been operating telemarketing services for a period of approximately 10 years. Respondent is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with provisions of Chapter 501, Part IV, Florida Statutes. The application submitted by Petitioner to Respondent for licensure as a commercial telephone seller listed three legal actions taken against Petitioner in the states of Florida, Oregon and Wisconsin. Petitioner entered into an Agreed Permanent Injunction and Final Judgment in the Circuit Court of the 11th Judicial Circuit for Dade County, Florida, on October 5, 1992. At that time, Petitioner accepted responsibility for running a mail advertisement promotion in Florida, advising potential customers to call a toll free number to place orders although Petitioner had not met the State of Florida's registration requirements. As a part of the settlement, Petitioner agreed to refrain from advertising and promoting sweepstakes in Florida in violation of state requirements and paid a total of $2,500 to cover a civil penalty, as well as attorney fees and costs. Petitioner entered into an Assurance of Voluntary Compliance in Circuit Court in Marion County, Oregon, on August 7, 1992. Petitioner agreed at that time to refrain from engaging in telephone solicitations in the state of Oregon and to pay $7,500 in investigative costs and attorney fees to the Oregon Department of Justice. On September 11, 1992, a Consent Judgment was entered in the Circuit Court for Waukesha County, Wisconsin. Based upon the stipulation of the parties, the judgment enjoined Petitioner from engaging in certain sweepstakes activities and ordered Petitioner to pay a civil forfeiture to the state of Wisconsin in the amount of $10,000 for various violations of that state's telemarketing regulations. In accordance with provisions of Section 501.612(1)(c), Florida Statutes, Respondent denied Petitioner's application for licensure in the State of Florida as a commercial telephone seller as a result of the Florida, Oregon and Wisconsin legal actions.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application. DONE AND ENTERED this 20th day of July, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1993. APPENDIX The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-2. Accepted in substance. 3.-5. Rejected, relevance. 6.-8. Subordinate to HO findings on this point. Rejected, unnecessary. Accepted, but not verbatim. 11.-12. Rejected, argument, relevancy. Accepted. Rejected, weight of the evidence. Rejected, relevancy. Respondent's Proposed Findings 1.-7. Accepted in substance. Rejected, recitation of statute. Accepted. COPIES FURNISHED: Terry Fleischer, President Gerovicap Pharmaceutical Corporation 1785 East Sahara Ave., Suite 160 Las Vegas, Nevada 89104 Jerome A. DePalma, Esquire 3201 South Maryland Parkway Suite 326 Las Vegas, Nevada 89109 John S. Koda, Esquire Office of General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Hon. Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Richard Tritschler General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508 Tallahassee, Florida 32399-0800
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit. RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of January, 1985.
The Issue Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854. Before presenting the case for consideration, the parties entered into these factual stipulations: The Division of Administrative Hearings has jurisdiction to consider this case. The Notice of Hearing in this cause is timely. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava. The invoice referred to above may be found as Petitioner's Exhibit No. admitted into evidence. The television set is Petitioner's Exhibit No. 2 admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.) After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads: "In violation of registration; civil penalties.- The Division may refuse to validate or may invalidate temporarily or permanently the registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer; (d) Committing any other act which constitutes fraud or dishonest dealing." By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).) An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.
Recommendation It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED. DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney State of Florida, Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Robert D. Hurth, Esquire 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308
Conclusions There is competent substantial evidence to support a conclusion that Miami-Dade County owed a duty of care that was breached when its bus driver ran a red traffic signal, directly and proximately causing the Claimant’s permanent and severe injuries. ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with Section 768.28(8), Florida Statutes, but not with Section 3 of this claim bill, Claimant’s attorney has submitted a closing statement affirming that the attorney’s fees are 25 percent of the amount of the award, and that the lobbyists' fees are an additional 6 percent. The Claimants have entered into an agreement to pay costs that was approved by the guardian and the court. Costs are expected to range between $25,783.29, the amount as of January 15, 2007, to $75,783.29 by the end of the claim bill process. LEGISLATIVE HISTORY: This is the first time that a claim bill has been filed to compensate Schneidine Theogene. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 56 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Mark Kruse, House Special Master Counsel of Record
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2009.
