Findings Of Fact In 1987 the City of St. Petersburg sought permission to file an application for an Areawide Development of Regional Impact (DRI) for the Intown Area. On July 23, 1987, notice was sent to each property owner within the proposed Areawide DRI. The notice indicates that a public hearing would be held on August 27, 1987, from which the St. Petersburg City Council would decide whether to authorize the City of St. Petersburg to proceed to apply for the DRI. Petitioner, John Warren, received said notice and owns property within the area encompassing the Areawide DRI. Further notices were provided to property owners within the area, including a notice of the petition filed by the City which was published in the St. Petersburg Times on July 27, 1987; a notice to property owners dated September 1, 1987, advising that the City was authorized to proceed with the Intown Areawide DRI; and three other notices regarding public hearings and consideration of the DRI. After all required notice, the St. Petersburg City Council considered the proposed Areawide DRI on December 15, 1988, and formally adopted the DRI by Ordinance No. 1072-F. The ordinance was signed on December 15, 1988. A Notice of Adoption of a Development Order was executed and recorded in the public records on December 20, 1988. The development order enacted on December 15, 1988, was transmitted to the Department of Community Affairs and the Tampa Bay Regional Planning Council on December 19, 1988, and to the City Clerk on December 20, 1988. A certified copy of the DRI Ordinance 1072-F as enacted on December 15, 1988, is a part of the record as Exhibit K and it is incorporated by reference. Thereafter the Tampa Bay Regional Planning Council appealed the DRI pursuant to Section 380.07(2), Florida Statutes, to the Florida Land and Water Adjudicatory Commission. The City and Tampa Bay Regional Planning Council reached an agreement for settling the appeal and said settlement was finalized in the Stipulated Settlement Agreement. Pursuant to the Stipulated Settlement Agreement, the St. Petersburg City Council, at its February 2, 1989, meeting, adopted the terms of the Settlement Agreement, modified Ordinance 1072-F to incorporate the settlement terms, and adopted Ordinance 1072-F as modified. Based upon the settlement and modification of the DRI by the St. Petersburg City Council, on February 7, 1989, the Tampa Bay Regional Planning Council filed a Notice of Voluntary Dismissal of its appeal to the Florida Land and Water Adjudicatory Commission. The Florida Land and Water Adjudicatory Commission entered a Final Order of Dismissal on February 20, 1989. Warren filed his Petition on Appeal on March 20, 1989. The Petition is filed pursuant to Sections 380.06(25)(h) and 380.07, Florida Statutes, and Rule 42-2.002, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order granting the Amended Motion to Dismiss and dismissing the Petition on Appeal filed by John Warren. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. COPIES FURNISHED: Peter B. Belmont Patty Woodworth, Secretary Attorney at Law Planning and Budgeting 511 31st Avenue North Executive Office of the Governor St. Petersburg, Florida 33704 The Capitol, PL-05 Tallahassee, Florida 32399-0001 Michael S. Davis Mirelle Murphy James Honorable Bob Martinez Mark A. Winn Governor, State of Florida Attorneys at Law The Capitol Post Office Box 2842 Tallahassee, Florida 32399 St. Petersburg, Florida 33731 Honorable Robert A. Butterworth Roger S. Tucker Attorney General Attorney at Law State of Florida Tampa Bay Regional Planning The Capitol Council Tallahassee, Florida 32399-1050 Suite 209 9455 Koger Boulevard Honorable Doyle Conner St. Petersburg, Florida 33702 Commissioner of Agriculture State of Florida Jeffrey N. Steinsnyder The Capitol Attorney at Law Tallahassee, Florida 32399-0810 Department of Community Affairs 2740 Centerview Drive Honorable Betty Castor Suite 138 Commissioner of Education Tallahassee, Florida 32399-2100 State of Florida The Capitol James C. Vaughn, Jr. Tallahassee, Florida 32399 Governmental Analyst Florida Land and Water Honorable Jim Smith Adjudicatory Commission Secretary of State The Capitol State of Florida Tallahassee, Florida 32399 The Capitol Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Honorable Gerald Lewis Commissioner Comptroller, State of Florida State of Florida The Capitol The Capitol Tallahassee, Florida 32399-0350 Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether the Suwannee River Water Management District's (SRWMD's) decision to award the contract contemplated in its Request for Proposals, RFP No. 05/06-036WR, Hydrologic Services and Recorder Station Maintenance (Maintenance Contract), to Hydrologic Data Collection (HDC) is contrary to the agency's governing statutes, the agency's rules or policies, or the proposal specifications.
Findings Of Fact Petitioner Hydrogage, Inc. (Hydrogage), is a Florida corporation with its principle place of business located at 2726 Lithia Pinecrest Road, Valrico, Florida 33954. On March 31, 2006, Respondent issued a request for proposals: RFP Number 05/06-036, Hydrologic Services and Recorder Station Maintenance. Petitioner timely submitted its proposal prior to the May 9, 2006, 3:45 p.m. deadline. Two other proposals were also timely submitted: one by HDC and one by Microcom Design, Inc. (Microcom). Petitioner's proposal contained all of the elements requested by RFP 05/06-036WR. SRWMD has a policy that is used when procuring services via competitive procurement, which is labeled as "6.6.4 RFP Other Services (Policy 6.4.4)." That policy provides in pertinent part: 10. A Selection Committee consisting of three members of Senior Management or appropriate alternates shall act as a corporate body to evaluate the proposals, rank the respondents, and select the individual or firm with the best relative ability to perform the services desired. The meeting or meetings in which the selection committee performs the above procedures are public meetings and may be observed by Contractor Respondents. In the case where presentations are required from the entities on the short list, three Selection Members must be present at short list presentations. Beyond this statement, there is no guidance in Policy 6.4.4 concerning how Selection Committees are to evaluate responses to an RFP. Likewise, the RFP at issue provides little guidance beyond the review form itself. The RFP states: Evaluation by District Selection Committee: The District Selection Committee composed of three (3) persons will review the qualifications of respondents and compare the proposals based on the items listed in Exhibit B, "Review Form," in Section 6. This form will be used by the Selection Committee in ranking the proposals. * * * Rejection of Responses: Pursuant to Rule 40B-1.812, Florida Administrative Code, the District reserves the right to reject any and all bids or other proposals submitted in response to District invitation. District also reserves the right to waive any minor deviations in an otherwise valid proposal. Florida Administrative Code Rule 40B-1.812, referenced by the RFP, provides: The District shall reserve the right to reject any and all bids or other proposal submitted in response to District invitation, and such reservation shall be indicated on all advertising and invitations. The District may waive minor irregularities in an otherwise valid bid. A minor irregularity is a variation from the terms and conditions which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interest of the District. Variations which are not minor may not be waived. A bidder may not modify bid after opening. Mistakes clearly evident on the face of the bid documents, such as computation errors, may be corrected by the District. The review form in Exhibit B of the RFP lists three categories for evaluation of proposals: 1) "Qualifications and Relevant Experience" (70 possible points); 2) "Financial Considerations" (25 possible points); and 3) "Data Delivery" (5 possible points). A similar review form to the one used for this procurement has been used by past Selection Committees reviewing proposals for the services at issue, with the distinction that the current procurement added a Data Delivery category for ability to use the Hydstra format. Previously, the review form contained only two categories: Qualifications and Relevant Experience (70-75 possible points); and 2) Financial Considerations (25-30 possible points). With one exception, it appears that the Selection Committees considered the qualifications of past bidders corporately consistent with Policy Number 6.6.4. This was not the first time Hydrogage submitted a proposal to perform these services. On several different occasions since 1997, Hydrogage submitted proposals that were accepted as timely and complete, but were not considered the winning proposal. On those occasions Hydrogage routinely requested the proposals submitted by other companies, as well as the review forms completed by the Selection Committees, in order to improve on its proposals for future submittals. The review forms used by past Selection Committees contained some variations but were generally consistent. For the Qualifications and Relevant Experience category, there are six subcategories reflected on the review sheet: proposed staff experience with similar projects; demonstrated understanding of scope of work; ability to perform all tasks in scope of work; references; availability/responsiveness of qualified personnel; and resources/equipment availability. These same subcategories are listed on the current review form. The review form for RFP 96/97-29WR included a listing of the points the Selection Committee could award for each subcategory under Qualifications and Relevant Experience, with the subcategory "proposed staff experience with similar projects" broken down even further according to the type of equipment to be used. For the Financial Considerations category, the lowest cost proposal was awarded the full thirty points, and each remaining proposal was awarded points in proportion to how its cost proposal corresponded to the lowest one. The review forms for RFP 96/97-29WR were signed by all three reviewers. The winning proposal was submitted by Sutron Corp., with Hydrogage placing second. The review form for RFP 99/00-41WR contained the same subcategories under Qualifications and Relevant Experience, but did not break down the points attributable to each subcategory. The review form simply listed the total points available for the entire category. Reviewers on the Selection Committee signed individual review forms, with only one reviewer detailing the points he awarded for each subcategory. The winning proposal was submitted by Sutron Corp., with Hydrogage listed as third. Hydrogage submitted the lowest cost proposal for this RFP, and Sutron Corp. submitted the third lowest. The review form for RFP 02/03-008WR contained the same categories but did not break down the points attributable to each subcategory. Like the review form for 99/00-41WR, it simply listed the total points available. Review forms for this bid were signed by all three reviewers. RFP 02/03-008WR was awarded to Safe Harbor Associates, and Hydrogage's proposal was ranked second. Hydrogage filed a protest to the award and after a hearing before the Water Management District Governing Board, all proposals were rejected and the project was re-bid through RFP 02/03-040WR. As with RFP 02/03-008WR, for 02/03-040WR no detail was provided on the review forms for the points attributable to each subcategory in the Qualifications and Relevant Experience component, and all three Reviewers signed each review form. The project was awarded to HDC, with Hydrogage coming in fourth. Petitioner did not challenge the specifications of the current RFP. Petitioner's representative believed that, consistent with past practice of the District and its rules and policies governing procurement procedures, the proposals would be scored using the same method by each Selection Committee member because they would make their decision as a group and that the financial aspect of the bid would be scored on a proportionate basis based on the relationship to the lowest bid. The budgets submitted by the three proposers under the Financial Considerations category of the current RFP were a) Hydrologic Data Collection - $72,910.00; b) Hydrogage - $81,149.40; and c) Microcom Design, Inc. - $185,241.00. All three Reviewers of the Selection Committee awarded 25 points to HDC for its cost proposal under Financial Considerations. Two of the Reviewers awarded Hydrogage 13 points and the third awarded 22 points. The first two Reviewers awarded zero points and five points, respectively, to Microcom. Unlike HDC, Hydrogage could deliver data in Hydstra format. The ability to do so meant that SRWMD personnel did not have to convert the data received into Hydstra format, which could save the District between $1,500 and $2,000 per year. Both Hydrogage and Microcom received five points from each member of the Selection Committee in the Data Delivery category, whereas HDC could not deliver data in this format and received no points from any member of the Selection Committee. With respect to the current solicitation, the review sheets for each reviewer were signed separately. The reviewers independently considered the proposals submitted and met individually with SRWMD staff to discuss references. The public meeting by the Selection Committee was limited to a tabulation of the scores previously determined by each individual Reviewer. In other words, the Selection Committee did not "act as a corporate body to evaluate the proposals, rank the respondents, and select the individual or firm with the best relative ability to perform the services desired," as required by Policy 6.6.4. Kirk Webster is the Deputy Executive Director of the Department of Water Resources for the SRWMD, and was a member of the Selection Committee. Mr. Webster has worked for the SRWMD since 1976 and has served on several Selection Committees, including those assigned to evaluate 96/97-29WR, 99/00-41WR and 02/03-008WR. Mr. Webster awarded HDC 65 of 75 points for Qualifications and Relevant Experience, and awarded Hydrogage 60 points. Mr. Webster considered the subcategories in this category to be of varying levels of importance, and did not necessarily separate out points for each subcategory. Nor did he deduct points for specified deficiencies in a proposal, but viewed the overall category as a composite. He did not award a perfect score in the Qualifications and Relevant Experience category to any bidder, because in his view there are no perfect companies. With respect to the Financial Considerations category, he awarded HDC the full 25 points available because it submitted the lowest bid. He awarded Hydrogage 22 points: approximately 10 percent fewer points than HDC because its bid was approximately 10 percent higher than HDC's. Based on his prior experience on selection committees, he used a mathematical calculation that was in direct proportion to the bid amounts of the three proposals submitted. Mr. Webster's method of awarding points in the Financial Considerations category was consistent with past practice of the SRWMD. John Dinges, Director of Resource Management for the SRWMD, also served on the Selection Committee. Mr. Dinges previously served on the Selection Committee for 02/03-008WR. He felt that the six subcategories in the Qualifications and Relevant Experience category were factors to consider, but not necessarily entitled to the same point value. If a proposer left a subcategory out of the RFP response, he would have awarded fewer points for the overall category. Mr. Dinges awarded the full 70 points in this category for all three companies. With respect to the Financial Considerations category, Mr. Dinges did not use a proportional method of awarding points as Mr. Webster. Instead, he awarded HDC the full 25 points for the lowest cost proposal. For Hydrogage, he "split the difference" between 0 and 25 and rounded up to thirteen. He awarded 5 points to Microcom, whose financial proposal was over twice as high as either other proposal, because it had submitted a proposal. Because Policy Number 6.4.4 does not specify how to calculate the financial component, Dinges felt that a Reviewer should not look at past practice of the agency but should look at the RFP itself and use his or her own judgment. Carolyn Purdy, the third Reviewer, is the Executive Office Coordinator for the District. Ms. Purdy has been employed by SRWMD for over 30 years and has served on several Selection Committees before this one, including the ones assigned to review proposals for 99/00-41WR and 03/04-40WR. Ms Purdy also awarded all three proposals the 70 points in the Qualifications and Relevant Experience category. In the Financial Considerations category, she awarded HDC 25 points, and like Mr. Dinges, "split the difference" between 0 and 25 and rounded up, awarding 13 points to Hydrogage. She awarded no points to Microcom. When serving on the Selection Committee for 99/00-41WR and 03/04-40WR, she had used the same or a similar method for evaluating the Financial Considerations category as that used by Mr. Webster in this case. She had no real explanation for changing her scoring method, other than that the SRWMD policy gives no criteria for scoring and she thought this was fair. One of the subcategories listed for the Qualifications and Relevant Experience category on the review form was "references." The Selection Committee members reviewed only Policy 6.4.4, the actual RFP and the three proposals submitted by HDC, Hydrogage and Microcom. The individual members did not check references supplied by the companies bidding on the project, but relied on staff to do so. Tom Mirti, the SRWMD's water resources networks program manager and hydrologist, was tasked with checking the references contained in the proposals. Mr. Mirti then met with each member of the Selection Committee to report the results of his reference checks. Hydrogage's proposal contained a section entitled "Client References" listing the names, addresses and telephone numbers for contact people at other water management districts, as well as a summary of the work performed for those districts. In addition, Hydrogage's proposal contained a listing of "Streamgaging/ADCP/Dye Dilution Clients" for the years 2004-2006 under its description of its work experience. Microcom also submitted a list of prior projects with contact information for each. HDC, on the other hand, in a section entitled "References," provided what is better described as a bibliography. It did not submit a list of business references or the names and telephone numbers of any other entities for whom it had performed similar work. The RFP specified that the proposal document must provide "Information on the geographic location of the contractor's firm and staff (resumes and experience on similar projects) that the contractor currently has available to perform the work." Arguably, providing information in response to this requirement would also provide the references that the review form identified as one of the criteria for evaluating the Qualifications and Relevant Experience component of the proposals. HDC's proposal, however, did not list "similar projects." Instead, the proposal relied heavily on the aggregate experience of the staff members identified for the project, referring repeatedly to "over 245 years of stream gaging experience with the USGS and private sector," and stating that it is "currently conducting stream gaging activities at 69 daily discharge stations, 8 periodic discharge stations, 9 acoustic velocity stations, 5 raingage stations and 2 water quality monitor stations in Florida and south Georgia." Clients for this work are not identified. Mr. Webster and Mr. Dinges believed that the term "references" on the review form meant references to other clients for whom a company had performed work. Both agreed that if a proposal left something out that was required, including references, points should be deducted for the deficiency. However, neither deducted points from HDC for not including business references. Ms. Purdy also believed that the response should include references to other agencies for whom the proposer had performed work, but felt that HDC's submission of bibliographical entries was reasonable because the people preparing the response are scientists. More importantly, she felt no need to check business references for HDC because it had worked for the SRWMD in the past and its representatives "do good work." Mr. Dinges and Mr. Webster expressed a similar view. Indeed, Mr. Webster testified that he would rely on the fact that a contractor had worked for the SRWMD in the past, perhaps to the detriment of other companies, if it had done good work. Regardless of the value each Selection Committee member would attribute to references, the RFP and past practices of the Division require that some deduction be made for failing to provide this information. No such deduction was made to HDC's score for this deficiency by any member of the Selection Team. Tom Mirti, the staff person tasked with checking the references, acknowledged that HDC did not submit business references. However, in light of the work HDC had done for the District previously, he decided that he could serve as a reference for HDC. He had in the past given HDC's name to other entities because he liked the quality of its work, and called those to whom he had given HDC's name to confirm that the work HDC had done was satisfactory. The information that Mirti supplied, i.e., serving as a reference himself and contacting other entities regarding HDC, was not information readily available from the response to the RFP itself. Mr. Mirti's actions, while well- intentioned, served to supplement HDC's proposal and provided to HDC an advantage not enjoyed by other bidders. Likewise, the failure to provide references was not an error, such as a computation error, that could or should be corrected by the Division. When the totals for all three reviewers are added up for each proposal, HDC received 280 points, Hydrogage received 263 points, and Microcom received 230 points. If two of the Selection Committee members, consistent with their own prior practice and with the prior practice of the SRWMD, had awarded points in the Financial Considerations category in proportion to the lowest bid, Hydrogage would have received more overall points than any other bidder. Similarly, where a point value for references has been identified in past solicitations, the subcategory was generally awarded 10 points. There is no requirement that 10 points be deducted, but all three Reviewers agreed that some deduction should have been made. If points had been deducted from HDC's score for failure to provide references, its point total may have been lowered so that Hydrogage may have received the highest overall total.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that rescinds the recommendation that RFP No 05/06-036WR be awarded to Hydrologic Data Collection, Inc. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 13th day of September, 2006.
The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioners are persons subject to chapter 394, part V, and are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook and internal memorandum are unpromulgated rules which are imposed on FCCC residents, and that the same are an improper exercise of delegated legislative authority as de facto agency rules that have not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes.
