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),2/ 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”). Petitioner, who is a sexually violent predator, is a person subject to chapter 394, part V, and is confined in the FCCC. Petitioner alleges that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioner also claims that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioner does not allege that he is housed at FCCC pursuant to the Baker Act.
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”). Each Petitioner is a sexually violent predator, and collectively are persons subject to chapter 394, part V. Petitioners are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioners also claim that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioners do not allege that they are housed at FCCC pursuant to the Baker Act.2/
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the owner of a licensed assisted living facility located at 7701 Southwest 20th Street, Miami, Florida (the subject premises). This facility was licensed for six residents. Jose Gutierrez-Marti and Maria Witt were the owners of the Respondent. The residents of the subject premises were mentally ill adults. On November 21, 1996, Arturo Bustamante, a fire protection specialist and a health facility evaluator employed by Petitioner, conducted an inspection of the subject premises. Mr. Bustamante went to the subject premises in response to a complaint and to conduct a follow-up inspection to the previous inspection. During the course of his inspection, Mr. Bustamante determined that there were eight residents living at the subject premises. This determination was initially made by counting beds and inspecting the prescription medication that was provided each resident. Mr. Bustamante confirmed that there were eight residents by interviewing the residents, and by observing that the eight residents were removed from the subject premises later that day by the Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services. There was no running water in the subject premises on November 21, 1996. Consequently, there were no functioning bathroom facilities in the subject premises. Mr. Bustamante observed fresh feces and the smell of urine in an area of the backyard that the residents reported they used in lieu of a bathroom. Respondent had not notified Respondent that the water services had been terminated. There was no evidence that Respondent had taken any action to correct this serious deficiency. There was insufficient evidence to establish when the water service had been terminated or whether water service had been terminated previously. Mr. Bustamante observed roach droppings throughout the subject premises. Mr. Bustamante observed a box of powdered milk on a shelf inside the facility. When he opened the container to inspect the contents, five or six roaches jumped out of the box. Metro-Dade Police Officers Mary Ippolito and Mary Jo LaMont came to the subject premises at the request of Mr. Bustamante. These police officers were present when the residents were removed from the subject premises. Officer LaMont observed cockroaches in the kitchen area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds that on November 21, 1996, Respondent exceeded its resident capacity and failed to meet licensure standards. It is further RECOMMENDED that the Final Order impose an administrative fine against the Respondent in the amount of $1,000.00 for exceeding its resident and capacity. It is further RECOMMENDED that Respondent be fined $4,000 and its license revoked for failing to provide for the residents' basic sanitation needs. It is further RECOMMENDED that Respondent be permitted to reapply for licensure when it can establish that its facility meets all licensure standards. DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2st day of December, 1997.
Conclusions Having reviewed the Administrative Complaint and Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the Provider, Hillcrest Residential ALF, Inc. d/b/a Hillcrest Retirement Residence (“the Provider”), pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Notice of Intent to Deny (Composite Ex. 1) with an Election of Rights form to the provider. The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2). Based upon the foregoing, it is ORDERED: Filed December 7, 2011 2:51 PM pibision of Administrative Hearings 1. The attached Settlement Agreement is adopted and incorporated by reference into this Final Order. 2. The Provider’s license to operate this assisted living facility (License Number 5389) is UNCONDITIONALLY SURRENDERED. 3. The Agency’s Notice of Intent to Deny is upheld and the Provider’s license renewal application is DENIED. 4, An administrative fine in the amount of $29,500.00 is imposed against the Provider and is STAYED in accordance with the terms of the Settlement Agreement. 5. The Provider is responsible for any refunds that may be due to any clients. 6. The Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. The Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this ? day of Decee bey » 2011. es ded Elizabeth/Dudek, Secr Agency for Health q ary g Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 7o— tay of » 2011. aN Richard Shoop, Agency Cl Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Copies: Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Shaddrick Haston, Unit Manager Medicaid Accounts Receivable Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (nteroffice Mail) (Electronic Mail) Shawn McCauley Patricia Caufman, Field Office Manager Medicaid Contract Management Areas 5 and 6 Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Electronic Mail) Thomas J. Walsh II, Senior Attorney Monica Strickland, Esquire Office of the General Counsel 402 East 7th Avenue Agency for Health Care Administration Tampa, Florida 33602 (Electronic Mail) (U.S. Mail) Thomas M. Hoeler, Chief Facilities Counsel R. Bruce McKibben Office of the General Counsel Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Electronic Mail) (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2} The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact On August 4, 1995, the Department issued request for proposal Number 95-CO-6740 titled "Appreciating Racial, Cultural, and Gender Diversity" (the "RFP") for the delivery of instruction addressing racial, cultural, and gender diversity issues in the correctional work place, as well as workplace diversity issues relating to the American with Disabilities Act (ADA). The proposal called for the training of 1,500 of its employees, thirty persons per session, at sites throughout the state. Four of the sessions were to be "train-the trainer" sessions, which would prepare Department employees to carry on the training after the expiration of the Contract. No protest challenging the terms and conditions of the RFP was filed. The RFP contained a description of the scope of the work to be performed, and of the required contents of the proposals to be submitted, as well as expectations for the prevailing offeror. Proposals were submitted to the Department on September 6, 1995 and were reviewed and evaluated by five (5) employees of Respondent who comprised the Evaluation Committee. Proposals were scored on a 100-point scale consisting of 50 evaluation points and 50 cost points. The 50 evaluation points were comprised of 10 points for "qualifications of offeror," 10 points for "previous related experience," and 30 points for "work plan and course outline." The proposal with the lowest cost per student was awarded 50 cost points. The cost points of all other proposals was determined by the formula 50(1-A/B). A being the difference between the cost-per student of the proposal being scored and B being the lowest cost per student. Petitioner New Day was a responsible bidder to the RFP. Out of a possible 50 points for the evaluation of its proposal, Petitioner New Day received an average of 43.8 points and Zanco received an average of 32.0 points. Out of a possible 50 points for its price per student, Petitioner received 31.4 points and Zanco received the full 50 points. Adding committee points and cost points, Zanco's proposal received the highest overall score with 82.0 points and New Day received the second highest score with 75.2 points. Respondent issued its intent to award the bid to Zanco. Petitioner seeks to compare its proposal with Intervenor's. This is contrary to the instructions given to the bidders and the evaluation committee. The evaluation committee guidelines stated, in part: 3.a. DO NOT evaluate by comparing one bid/proposal with another; each must be evaluated independently of the others. (Emphasis in original). Petitioner argues that Zanco's proposal was non-responsive because it did not comply with the mandatory requirements of the RFP. Petitioner argues that Zanco's proposal did not demonstrate a comprehensive knowledge of trends related to diversity and demographic changes. Relating to the mandatory requirements, sections 5.1 and 5.10 of the RFP provide as follows: 5.1 The State has established certain requirements with respect to responses to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Request for Proposal indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal require- ments, provides an advantage to one bidder over other bidders, has a [potentially signifi- cant] effect on the quantity or quality of items proposed, or on the cost to the State. [Material deviations cannot be waived]. (Emphasis in original). 5.10. Any RFP response which fails to meet the mandatory requirements stated in this Request may be rejected. Section 2.1 of the RFP lists the mandatory requirements. Section 3.1 of the RFP, titled "RFP response format," describes the format in which an offeror is to assemble the requirements in its proposal. On the issue relating to the offeror's knowledge of trends, section 2.1.1 of the RFP provides as follows: The offeror must demonstrate a comprehensive knowledge of racial, cultural and gender diversity issues and trends with particular emphasis on methods of improving racial cult- ural and gender interaction in the work place. The offer must also demonstrate comprehensive knowledge of diversity as described as above and as it pertains to ADA. Contained in Zanco's executive summary is the following statement: By the year 2000, just five brief years from now, minorities and women will completely dominate the demographics of the United States - a fact which will revolutionize the way in which our society will have to operate. Gone will be the days of the traditional majority - replaced by large groups of women, older and handicapped persons, Hispanics, Afro-Americans, Asians, Native Americans and others. Petitioner argues this statement is incorrect because the traditional majority will continue to be white Americans. Zanco's statement does not imply that white Americans will not be the majority. Zanco's statement merely separates white women from white men and predicts that there will be many more white women, along with men and women of other backgrounds, than white men. The United States Department of Commerce, Bureau of the Census, predicts that by the year 2000, there will be approximately 96 million white men compared to approximately 178 million combined white women and Hispanic, Black, American Indian, Eskimo, and Aleut, and Asian and Pacific Islander men and women in the workplace. Zanco's statement is correct and supported by the evidence. Zanco's proposal demonstrated a comprehensive knowledge of racial, cultural and gender diversity issues and trends. Petitioner argues that Zanco's proposal did not contain training goals or behavioral objectives. On this issue, section 2.1.2 of the RFP provides as follows: The offeror must provide specific training goals and behavior objectives along with a course outline depicting areas to be addressed in the instructional program. Petitioner argues that a behavior objective focuses on what participants are expected to do. They are expressed in behavior terms with verbs, such that a participant will distinguish, identify, or list. Petitioner bases this opinion on chapter 9 of Foundations of Education. This book, although a useful source book, was neither included in nor referenced by the RFP. Thus, Foundations of Education is relevant for the limited purpose of supporting the opinion of Petitioner as to the definition of a behavioral objective. Foundations of Education can not be the basis by which to determine whether Zanco's proposal includes training goals and behavioral objectives. Zanco's proposal includes training goals and behavioral objectives. For example, the training goal of session two is to establish a common language. The training goal of session three is to relate diversity to every day life. The behavioral objective of session six is to raise awareness and reduce attitudinal barriers. The training goal of session seven is to lead to effective cross-cultural relationships. The behavioral objective of session nine is the management and controlling of prejudicial thinking. The behavioral objective of session 11 is to have participants view others and themselves as greater than the sum of their parts. The behavioral objective of session 13 is to understand how a community's reaction to differences adversely affects everyone's humanity. The behavioral objective of session 16 is to become aware of our natural inclination to generalize and apply assumptions. The behavioral objective of session 20 is responding effectively to changes. The behavioral objective of session 21 is understanding differences and valuing uniqueness. The behavioral objective and training goal of session 22 is creating an environment for diversity in order to establish effective working relationships in which employees can succeed. The behavioral objective of session 23 is encouraging listening and responding constructively to others' views. Zanco also includes behavioral objectives in tab one of its proposal, its executive summary, as follows: Zanco helps employers think differently about the way people learn and develop, about employees [sic] capacity to achieve maximum performance, about how attitudes, actions and policies affect the climate of the workplace and, ultimately, its mission capability. . . Zanco's programs inspire individual contri- butors to take responsibility for improving the effectiveness of their organization, under- standing that those individuals who can work effectively with coworkers and inmates from a variety of backgrounds will be best equipped to contribute to their organization's goals and to fulfill their own career aspirations. Zanco's proposal included training goals and behavioral objectives. Petitioner argues that Zanco's proposal did not show comprehensive knowledge of familiarity with federal and state laws. On this issue section 2.1.3 of the RFP provides as follows: The offeror must demonstrate comprehensive know- ledge of all state and federal laws, rules and guidelines governing affirmative action, equal opportunity employment issues, and ADA. Under previous task-related experience, Zanco's proposal included an outline of the Florida Education Equity Act which was prepared pursuant to training clients in the education field based in Florida. Zanco's proposal refers to the ADA in its previous task-related experience and in its course outline. Zanco's proposal demonstrated comprehensive knowledge of all state and federal laws governing affirmative action, equal opportunity employment issues, and the ADA. Petitioner argues that Zanco's proposal does not show that it knows of the composition of the Department's work force. On this issue section 2.1.4 of the RFP provides as follows: The offeror must demonstrate reasonable aware- ness of the composition of the corrections workforce and of the corrections workplace/ environment. Zanco's proposal substantially demonstrates a reasonable awareness of the composition of the Department's work force. Petitioner argues that Zanco's proposal did not include visual or printed materials to be used in the program delivery process. On this issue section 2.1.5 of the RFP provides as follows: Instructional methods employed in the program delivery process must include appropriate visual and printed materials, hands-on experi- ence and performance-based participant interaction. This is a requirement for the successful offeror that is awarded the contract. It is not a requirement for an offeror to put in its proposal. Thus, it is irrelevant whether Zanco's proposal included visual or printed materials. Petitioner argues that three of the five references listed by Zanco were for the same training exercises. On this issue sections 2.1.11 and 3.1.3.1 of the REP provide as follows: The offeror must provide a listing of at least four (4) previous clients who are able to provide evaluative [sic] information regarding the offeror's instructional performance. The vendor shall provide a list of four (4) different previous clients as references. References shall provide a description of services performed with enough detail to allow the evaluation committee to easily determine whether the work was similar to that being requested by the state in this Request for Proposal.... Zanco listed the following four clients: the School Board of Charlotte County, the School Board of Sarasota County, the School Board of Manatee County, and the Florida Department of Labor and Employment Security. The RFP did not request the vendor to list five references that received different types of training. Rather, the RFP requested a list of four previous clients that received training similar to that being sought by the Department. Zanco's proposal listed four clients and described the services performed with sufficient detail to determine that the work was similar to that being requested by the Department. Petitioner argues that Zanco's proposal fails to include relevant measurement instrument samples. On this issue section 2.1.9 of the RFP provides as follows: The offeror must provide samples of relevant and measurement instruments, including performance evaluations, objective tests and course/instructor evaluation surveys. Zanco's proposal included samples of relevant measurement instruments. Zanco's proposal fails to list the education of Inez Bracy in its resume. On this issue section 3.1.2 of the RFP provides in pertinent part as follows: The vendor shall include resumes of the specific individuals proposed to work on this contract, specifying education and work experience that relates directly to appreciating racial, cultural and gender diversity. If Bracy's education were not directly related to appreciating racial, cultural and gender diversity, by a plain reading of section 3.1.2 if would not need to be specified. However, the first sentence in Bracy's resume states "I have taught in the Palm Beach District School System for fifteen years." Moreover, Section 3.1.2 did not ask for only the education of the trainer but prior work experience. Bracy's work experience was listed and includes coordinating a conference titled "Building Global Bridges" and teaching "sensitivity in a multicultural classroom" to the Palm Beach County Classroom Teachers Association. Zanco's proposal substantially demonstrates the educational background and work experience of Inez Bracy. Zanco's proposal indicates that it is entering its fifth year of business, but Petitioner argues that Zanco's references begin in 1994 and that Zanco does not have relevant experience that predates 1994. On this issue, Section 3.1.3.2 of the RFP provides as follows: The Department prefers vendors who have been in business for at least three years. Vendors which have not been in the instructional delivery business for at least three years will receive a five (5) point deduction. Zanco's proposal includes a statement that Zanco "is entering its fifth year as a specialist in the Diversity and Equity instructional delivery business." The RFP did not request references corresponding to every year a vendor is in business. Further, if Zanco had been in business for only one or two years, Section 3.1.3.2 of the RFP would only effect the score assigned to Zanco and not the responsiveness of Zanco's proposal. The score, reduced by 5 points, would still exceed Petitioners score. Petitioner argues that Zanco's proposal does not contain a work plan. On this issue, Section 3.1.4 of the RFP provides as follows: [Tab 4, Workplan and Course Outline] - This section shall include a proposed workplan describing how the vendor will approach this training including training aids, trainee interaction, etc. plus a proposed course out- line for the 3-day session. There shall be a workplan and outline for both the staff training and the train-the-trainer training. (Emphasis in original). Petitioner argues that this requirement mandates that a course outline and workplan must be separate documents. The RFP, however, does not state that two separate documents must be provided. It states that both must be present. Zanco's work plan is mixed with its outline. Zanco's proposal contained a work plan. Petitioner argues that the score given to Zanco's proposal was arbitrary because the proposal did not include a work plan or an outline for the three-day session. The 50 evaluation points consisted of 10 points for "qualifications of offeror", 10 points for "previous related experience", and 30 points for "work plan and course outline". Petitioner does not challenge the 50 cost-points given to Zanco. Zanco received an average of 32.0 evaluation points. Petitioner received an average of 43.8 evaluation points. For qualifications of offeror, Zanco received 5, 7, 10, 9, and 5 points for an average of 7.2 points. For previous related experience, Zanco received 10, 5, 10, 9, and 5 points for an average of 7.8 points. For work plan and course outline, Zanco received 20, 15, 15, 15, and 20 points for an average of 17.0 points. Petitioner proffered that 5 points was logical for Zanco's qualifications, and that 5 points was logical for Zanco's previous related experience. In Petitioner's witness Thompson's opinion, however, any score given to Zanco's qualifications or previous related experience above 5 points was arbitrary. Petitioner argues that Zanco should have received no points for its work plan and course outline because Zanco did not include a separate work plan. Petitioner argues that it was arbitrary for Zanco to have received any points for its work plan and course outline. By Petitioner's interpretation of the RFP, the work plan had to be separated from the course outline, and that Zanco did not include a separate three-day course outline. Zanco's three-day course outline is contained in its proposal. Each of the 25 sessions listed by Zanco in its diversity training outline is approximately 45 minutes to an hour in duration. It would take roughly 24 hours to cover 25 45-minute to one-hour sessions, or three eight-hour days. There was no requirement in the RFP that the work plan and course outline had to be on separate pages or located under separate tabs. Zanco's work plan is mixed with its outline. The evaluation committee did not award points for Zanco's work plan and course outline in an arbitrary or capricious manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying the relief requested by Petitioner and recommending that a Final Order be entered awarding the contract for RFP Number 95-CO-6740 to Intervenor, Zanco. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 16th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5803BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraph 1, 2 (partially addressed in Preliminary Statement), 3, 4 (Preliminary Statement), and 5. Rejected as against the greater weight of evidence: paragraphs 6(A), (B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), (M), (N), and 7. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 71, 72, 73, 75, 76, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 119. Rejected as subsumed, or irrelevant and immaterial: paragraphs 21, 49, 50, 55, 69, 70, 74, 77, 113, 114, 115, 116, 117, 118, 120, 121, 122, and 123. Intervenor's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10 (in part), 12, 13 (in part), 14, 15, 16 (in part), 17, 18 (in part), 19 (in part), 21 (in part), 22 (in part), 24 (in part), 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34. Rejected as subsumed, or irrelevant and immaterial paragraphs 9, 10 (in part), 11 (in part), 13 (in part), 16 (in part), 18 (in part), 19 (in part), 20 (in part), 21 (in part), 22 (in part), 23, 24 (in part), 25 (in part). COPIES FURNISHED: Norberto S. Katz, Esquire Katz and Veliz, P.A. 2211 East Michigan Street Orlando, Florida 32806 Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Darlene Andert-Schmidt, President Management Concepts 2562 Southwest 27 Place Cape Coral, Florida 33914
The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether the Petition for Relief from an unlawful employment practice was timely-filed, and if it was not timely-filed, is this cause barred?
Findings Of Fact Petitioner filed an undated Charge of Discrimination on the basis of "race and "age" with the Florida Commission on Human Relations (Commission). On June 21, 2000, the Commission issued its Notice of Determination: No Cause and mailed a copy thereof to Petitioner. Petitioner was required by Section 760.11(7), Florida Statutes, to request a formal hearing "within 35 days of the date of determination" of no reasonable cause, failing which the claim would be barred and the complaint dismissed. The Commission notified Petitioner of this 35-day deadline in its Notice of Determination: No Cause served on Petitioner on June 21, 2000. 5. Rules 60Y-5.004(5) and 60Y-4.007(2), Florida Administrative Code, provide that the Petition for Relief must be filed within 33 days of the date of a No-cause Determination which is served on a complainant by mail. The thirty-third day following the June 21, 2000, issuance of the No-cause Determination expired on Monday, July 24, 2000. The thirty-fifth day following the June 21, 2000, issuance of the No-cause Determination expired on Wednesday, July 26, 2000. The Petition for Relief was postmarked July 31, 2000, which is five days after expiration of the statutory filing deadline. The Petition was stamped-in by the Commission Clerk on Tuesday, August 1, 2000, which is six days after the statutory filing deadline. The certified copy of the Petition stamped-in by the Commission and its post-marked envelope show that the Petition for Relief was not timely-filed with the Clerk of the Commission. There has been no affirmative showing of excusable neglect by Petitioner.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000. COPIES FURNISHED: James J. Dean, Esquire Ricky Polston, Esquire Polston & Dean, P.A. 106 East College Street Suite 900, Highpoint Center Tallahassee, Florida 32302-1836 Bobbi Debose 1129 Northeast 24th Street Gainesville, Florida 32641 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Parties The Department of Health and Rehabilitative Services (HRS) is an agency of the State of Florida with the responsibility to provide services to certain clients and the authority to contract for the provision of those services. Multi-Resources, Inc., (MRI) is a Florida corporation with an office in Sebring, Florida. The corporation provides behavioral treatment to persons with developmental disabilities referred to its programs by HRS. The corporation currently operates in HRS Districts VI, VII, and IX, including a facility in Orlando, in District VII, which serves residential clients in two homes under contract with HRS. The clients in that facility are the same clients who are to be served under the proposed contract which is the subject of this proceeding. ARA Devcon, Inc., (Devcon) has been incorporated in Florida since 1981. It currently serves 276 developmentally disabled individuals in residential cluster facilities. Eighty-four of these individuals are "dually diagnosed"; that is, they are retarded and also have mental disabilities which require intensive intervention. Devcon provides services to HRS clients through contracts with the agency. Pejus, Inc., (Pejus) is an Indiana corporation organized to provide human services to persons with special needs. It operates programs in northern Indiana and, through a separate Florida corporation, Community Opportunities, Inc., it operates residential group homes under contract with HRS in District IV. These group homes serve persons with dual diagnoses of mental retardation and mental illness with severe behavioral disorders. Wohlfarth Group of Homes, Inc., (Wohlfarth) is in the process of incorporating in the State of Florida, with an office in Deltona, Florida. It currently does business in New Jersey as Developmental Disabilities Association of New Jersey, Inc.. In New Jersey it provides services to developmentally disabled persons, which services include group homes and adult training programs. The Request for Proposals On January 3, 1991, HRS District VII Administrator, Paul Snead, approved the Request for Proposals (RFP) and appointment of a 5-person selection team for RFP #DS-91-01, for specialized group homes for 24 District VII clients who are dually diagnosed or have severe behavior problems. (Joint Exhibit #3, MRI Exhibit F) The deadlines in the RFP provide for release of the RFP on January 18, 1991, a bidders' conference on January 28, 1991, and responses to the RFP to be received by the department by 3:00 p.m. on February 15, 1991. (Joint Exhibit #3) The RFP describes briefly the services to be provided with programmatic and other special requirements. Under "General Information", the RFP provides that the contract will be a fixed-price contract, with a line-item budget to be presented for the contract period of October 1, 1991-September 30, 1992, October 1, 1992-September 30, 1993, and October 1, 1993-September 30, 1994. "All costs will be reviewed to ensure that the costs are allowable and 'reasonable and necessary'". (Joint Exhibit #3, p.5) The instructions in the RFP include the following: How to Submit a Proposal Each copy of the proposal must include a Title Page which contains the following information: RFP number Title of proposal; Bidder's name; Organization to which proposal is submitted; Name, title, phone number and address of person who can respond to inquiries regarding the proposal; and, Name of project director (if known). All proposals should include: (Attachment XI) The project objectives as seen by the bidder; A detailed explanation of how the services will be provided; and, An operational plan which lists the activities to be conducted to accomplish each objective, and completion dates. The proposal should include: (Attachment XI) A table of organization, indicating how the project staff fit into the total agency, and how each member of the project staff relates to the other; A synopsis of corporate qualifications, indicating ability to manage and complete the proposed project; Evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required); A copy of the most recent financial statement or audit; An explanation outlining the staff who will provide the service, their qualifications and their number; and, Complete the Administrative Assessment of Potential Providers Checklist (Attachment X) and return it with the response to the RFP. The bidder must deliver the proposal packets either by hand or certified mail in a sealed envelope marked "Bid RFP #DS-91-01". In order for the bidder to receive proof of delivery they must request a receipt showing the time and date of delivery or mailing. j. Number of Copies Required The bidder will be required to submit an original and 2 copies of the proposal. At least one copy of the proposal submitted to the department must contain an original signature of an official of the provider agency who is authorized to bind the provider to the proposal. (Joint Exhibit #3, pp. 7, 8) The RFP describes "other required information" to include a Department of General Services acknowledgment form, a "statement of no involvement" form (certifying that the bidder was not involved in developing the RFP and other related matters), and a sworn statement under Section 287.133(3)(a), F.S. on public entity crimes. (Joint Exhibit #3, p. 9). Paragraph B.3.a. of the RFP requires that the proposal include "...a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract". (Joint Exhibit #3, p. 10) Paragraph C. of the RFP provides: C. Proposal Evaluation Criteria and Proposal Rating Sheet The criteria by which the response to RFP #DS-91-01 will be selected is found in Attachment IX. The proposal rating sheet is a list of the evaluation criteria and specific indicators used to assess the degree to which the bidder's response meets those criteria. Prior to February 20, 1991, each proposal will be reviewed by the Proposal Selection Team and points awarded for each section based on the responses given. The selection team will evaluate the quality and completeness of the bidder's response. The values awarded for each response will be tabulated and a minimum score established below which proposals will not be considered. (Joint Exhibit #3, pgs. 10, 11) Attachment IX of the RFP, (Joint Exhibit #3) is the proposal rating sheet for RFP #DS-91-01. It has spaces to be filled in for the title of the proposal, the bidder and the reviewer. Total possible points is 646, and a minimum of 323 points is required. Part A of the Proposed Rating Sheet provides: Part A: MINIMUM PROPOSAL REQUIREMENT - FATAL ITEMS (A. "no" in any of the following requirements will automatically remove the proposal from the further consideration.) Circle Appropriate Responses The proposal contains an original YES NO signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement. The proposal for a cost-reimbursement YES NO project includes a line-item budget with justification. The proposal for a fixed rate project includes justification for the fixed rate. Is the population to be served YES NO the target population specified in the RFP? Was the District 7 application Packet YES NO used to respond to the RFP? The proposal includes a completed and YES NO signed Public Entity Crime Form, PUR 7068. (Joint Exhibit #3) A total of 6 possible points is allowed for submittal of a bound proposal with required number of copies, all mandatory attachments, and sequentially numbered pages. Two questions on the proposal rating sheet yield a total of 20 possible points for the bidder's understanding of why the project is necessary and what the project is intended to accomplish. (Part C) Six questions yield a total of 300 possible points on the bidder's response to RFP specifications. (Part D) Six questions yield a total of 120 possible points on the bidder's organizational capability. (Part E) Four questions yield a total of 200 possible points for the bidder's budget and financial information. (Part F) (Joint Exhibit #3, Attachment IX) The Review Process Raymond Granston has been employed by the Department of Health and Rehabilitative Services since 1986, as a case manager, and most recently as a human services program specialist in the HRS Developmental Services Program Office. He drafted RFP #DS-91-01, handled the advertisement and solicitation process, and led the 5-person selection team in the evaluation of responses. In addition to Granston, the team included Sandy Pruette, the Residential Services Director; Helen Tasher, a member of Granston's staff; Sandra Browdy, Licensure Specialist; and Paula Bowser, Grants Specialist. Four timely responses to the RFP were received: Pejus, MRI, Devcon and Wohlfarth. After the proposals were opened, Granston gave one copy of each to Paula Bowser. The original and remaining copy of each were retained in Granston's office for his and the other review team members' access. Each member took advantage of that access, and approximately February 26, 1991, the review committee met as a group, with Granston as chairperson. The group spent two or three hours together discussing the proposals and ascribing numbers from the rating sheet. Neither the Pejus, nor Wohlfarth proposals were rated, however, as "fatal" items were found. For the two remaining proposals, Raymond Granston kept notes of scores on a legal pad. The actual rating sheets for MRI and Devcon were not completed until sometime after the notice of intended award was sent, but the scores on Granston's notes were the basis for the notice. Those scores were a total of 534 for MRI (although the rating sheet reflects a computation error and total of 551); and a total of 618 points for Devcon. (Joint Exhibit #11 and 12) As described by the team members, the scoring process was a group effort, rather than the result of averaging individual members' scores for the proposals. Individual score sheets were not used. The Wohlfarth proposal was not scored by the review committee as the committee determined that paragraph A.1., the first "fatal" item, disqualified it from further review. That is, the committee felt that the proposal did not include "...an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement." (Joint Exhibit #3, Attachment IX) The review committee determined that the Pejus proposal had two "fatal" items: paragraph A.1., described above, and paragraph A.2. requiring justification in the budget. Determination on this latter item was based on lack of narrative pages in the budget. The Pejus proposal also had a couple of typographical errors where the service area was described as District IV, rather than District VII, but those errors were not considered by the committee to be "fatal" to its proposal. The agency maintained deliberative notes for the proposals submitted by MRI, Devcon and Wohlfarth, although these were not produced at hearing or offered into evidence. HRS, as stipulated by counsel, has no records which confirm any evaluation or rejection of the Pejus proposal. (Pejus Exhibit #1) The Bid Protest In a letter dated March 8, 1991, Ross Wingo, Jr., President of MRI, informed Ray Granston of his formal protest of intended contract award in RFP #DS-91-01, and outlined the bases for the protest. Most of MRI's protest involves argument that scores awarded for specific items are improper. For example, Devcon did not include a separate narrative statement for each budget item. Instead, a brief explanation of the cost was included on the face of the budget form. Devcon received a score of 9 out of 10 points; MRI received a full 10 points and included a separate narrative statement. The RFP paragraph E.5. requires a "statement certifying financial capability". Devcon did not include a separate signed statement, but rather provided the following at page 84: ARA Devcon has the financial capability to sustain this project for a minimum of 60 days or until the first reimbursement for services rendered is received from HRS. Further evidence of our financial capability is documented in the attached audit. (Joint Exhibit #2) Devcon received 9 out of 10 possible points for this. MRI received the full 10 points. A separate signed statement is clearly required in the RFP for the "statement of no involvement", but the RFP does not clearly require a separate signed statement of financial capability. Devcon's signature on the proposal itself constitutes acceptance of the entire proposal, including the statement described above. Each of the four proposals is voluminous, with narrative statements and lengthy attachments describing various financial, personnel or direct services aspects of the respective proposed program. Devcon's proposal is approximately 215 pages; MRI's is neatly bound, well- organized and comprises 395 pages. The narrative statements provided by Devcon are much briefer, but still include the essentials required by the RFP. It is obvious that the scores ascribed by HRS' review committee were not based simply on quantity of verbiage. Several of MRI's points on protest relate to the perceived quality of its detail as opposed to the sometimes bare-bones statements by Devcon. Scoring for many items was plainly subjective, but not plainly erroneous. Nor was it error, as contended by MRI for the review team to lack a certified behavior analyst or other expert in the direct delivery of services to developmentally disabled clients. Nothing in the RFP nor the procedural manuals of HRS require such expertise in review team members. HRS Manual 75-2 requires a selection team of at least three employees who have experience and knowledge in the program area and service requirements. (Joint Exhibit #9, p. 5-23) At least three members of the team had that experience and knowledge. One member, Paula Bowser, is a grants specialist for HRS developmental services and concentrated on the financial aspects and budget presentations in the proposals. Another member, Sandra Browdy, has 19 years employment experience with HRS, and as a human services program analyst/licensing representative is familiar with the agency's standards for service delivery and the evaluation and survey of service providers. It is impossible to determine that the review by the Committee was so cursory that the scores ascribed to Multi-Resources and to ARA Devcon's proposals are invalid. It is obvious, however, that the Committee missed certain documents in the Pejus and Wohlfarth proposals or erroneously stated the reason for failure to score those proposals. Joint Exhibit #5 is the exhibit examined by the parties at the hearing and was stipulated in evidence as the Wohlfarth proposal. (transcript p. 380) According to Raymond Granston, the Wohlfarth proposal was rejected for lack of an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of noninvolvement. In response to a specific question from the Hearing Officer, Granston stated the problem was not that there was no original signature, but rather that the statement is not there. (transcript, p. 504) The RFP, as cited in paragraphs #10 and #11, above, actually references two separate statements, although the two are addressed together on the RFP rating sheet. James Casale is identified throughout the Wohlfarth proposal as the Project Director. Marion Wohlfarth, President of Wohlfarth, is identified on the application for funding form as the official authorized to sign the contract. James Casale's name and signature appear on the Department of General Services Request for Proposal Acknowledgment form. That form includes this language "I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements." (Joint Exhibit #5 - unnumbered pages) James Casale's name and signature as authorized representative appear on the "Statement of No Involvement" form in the Wohlfarth proposal. Attachment V of the RFP is the HRS standard contract. Wohlfarth's proposal includes this contract form, signed by James Casale, Project Director for Wohlfarth Group of Homes, Inc. The required documents are found in the Wohlfarth proposal, but none of the signatures are originals. (Joint Exhibit #5) As admitted by Ray Granston, there is no specific form in the RFP that the proposer was to execute to state it would agree to the terms and conditions of the contract. (transcript, p. 503) By signing the contract itself, Wohlfarth apparently intended to agree to its terms and conditions, but the signature is not that of Marion Wohlfarth, the person authorized to sign the agreement. The Pejus proposal was stipulated into evidence by the parties as Joint Exhibit #4. (transcript, p. 380) This exhibit includes a cover letter signed by Ernest Beal, Jr., President of Pejus, Inc.. It also includes a bound volume, which is the body of the proposal, and a supplement to the proposal that was faxed to Raymond Granston on February 15, 1991. The supplement includes Ernest Beal's signature on the Department of General Services Request for Proposal Acknowledgment Form and a separate "Statement of No Involvement" Form signed by Ernest M. Beal, Jr. (Joint Exhibit #4) None of these are original signatures. There is no evidence of whether the fax was received by the 3:00 p.m. deadline. A follow up mailed version was stamped "received" by the agency on February 18, 1991. (Joint Exhibit #4) The Pejus Proposal was also not evaluated because it lacked budget justification. See paragraph #21, above. The proposal rating sheet does not require a narrative, but rather for a fixed-rate project such as this it requires "justification for the fixed rate". (Joint Exhibits #11 and #12) Pejus' proposal includes a detailed line-item budget on the forms provided in the RFP packet. Explanations, where necessary, are found in the line-item budget. (For example, see Attachment D1, pp. 4.3, 4.13, 4.19, 4.25 and 4.32., Joint Exhibit #4) HRSM 75-2 is the agency manual which provides procedures for HRS' procurement and contract management. It requires that prospective members of the selection team complete a conflict of interest questionnaire (Appendix J) to ensure that no team member has any conflict of interest that would interfere in selection of a contractor. (Joint Exhibit #9, p. 5-23) It does not provide when the form must be completed unless the team member participates in RFP development, in which case the form must be completed prior to that participation. Ray Granston complied with that requirement. Four of the five review committee members completed the questionnaire. (MRI Exhibits A-E) Appendix J, the questionnaire form, was amended effective November 1, 1990, and no longer requires a sworn statement. (Joint Exhibit #9) The manual requires that the selection team evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. It does not require, as suggested by Multi-Resources, that the evaluation sheets be completed by each reviewer or that the sheets be maintained. Summary of Findings The review process itself was informal and poorly documented, although it substantially complied with the requirements of the RFP and with the agency's procedures manual. From the evidence presented, the ultimate results of the review are appropriate, even though the witnesses were thoroughly confused as to the specifics regarding rejection of the Pejus and Wohlfarth proposals. The unclear requirements of the RFP as to forms and certifications thought missing from the Pejus and Wohlfarth proposals contributed to that confusion. The RFP requirements were not protested, however, and among the four providers who submitted proposals only MRI attended the advertised bidders conference. (Joint Exhibit #8)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing Multi-Resources, Inc., petition and awarding the contract in RFP #DS-91-01 to ARA Devcon, Inc. DONE AND RECOMMENDED this 16th day of August, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 16th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific treatment of the findings of fact proposed by MRI and Wohlfarth. Although it was substantially late, Wohlfarth's submittal was considered. Its consideration does not alter the outcome of this proceeding. Proposed Findings of Fact Submitted by MRI Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 6., except that the manual does not require a 5- person team. Rejected as contrary to the weight of evidence. 7.-9. Adopted in paragraph 19. Rejected as contrary to the evidence. Adopted in paragraph 32. Rejected as immaterial. 13.-16. Adopted in summary in paragraph 32. 17.-20. Rejected as immaterial, and, as to the requirements of HRSM 75-2, contrary to the evidence. 21.-23. Addressed in the preliminary statement. 24.-25. Adopted in paragraph 19. Adopted in paragraph 17. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 33.-35. Rejected as immaterial. Adopted in paragraph 19. Rejected as unclear. Adopted in paragraph 19. 39.-42. Rejected as contrary to the evidence. 43. Rejected as unnecessary. 44.-45. Rejected as contrary to the evidence. 46.-47. Rejected as immaterial. 48. Adopted in paragraph 19. 49.-50. Rejected as unnecessary. 51. Adopted in the conclusions of law, in substance. 52.-54. Rejected as contrary to the evidence. 55. Rejected as unnecessary. 56.-59. Rejected as argument or conclusion, rather than findings of fact. Proposed Findings of Fact Submitted by Wohlfarth Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 17. Rejected as contrary to the evidence. 5.-8. Rejected as immaterial. Rejected as contrary to the evidence. Adopted in paragraph 20. Rejected as contrary to the evidence. Rejected as unsubstantiated by competent evidence. 13.-16. Rejected as argument or conclusions, rather than findings of fact. COPIES FURNISHED: James Sawyer, Jr., Esquire HRS-District 7 Legal Office South Tower, Suite S-827 400 W. Robinson Street Orlando, FL 32801 Ross Wingo, Jr., Esquire Multi-Resources, Inc. 2555 US 27 South Sebring, FL 33870 ARA Devcon, Inc. Attn: Linda Mabile 2121 Killearney Way, Ste. F Tallahassee, FL 32308 Wohlfarth Group of Homes, Inc. Attn: Fred Wohlfarth 2301 Whitehorse Street Deltona, FL 32738 Ernest M. Beal, Jr., Esquire Pejus, Inc. 9025 Coldwater Rd., Ste. 300 Fort Wayne, IN 46825 John Liguori, Esquire P.O. Box 1051 Bartow, FL 33830 John Slye, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700
