The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of February, 2004.
The Issue The issue in this case is whether Petitioner's Petition for Relief should be dismissed pursuant to Section 120.57(1)(i), Florida Statutes.
Findings Of Fact Petitioner's First Case. In 1985, Petitioner filed an administrative complaint with the Florida Commission on Human Relations (hereinafter referred to as the "Commission") alleging that Respondent had discriminated against him on the basis of his race and his gender. In 1987, as a result of the 1985 complaint, a Recommended Order was entering recommending that the Commission enter a final order finding discrimination on the basis of race. The 1987 recommendation was ultimately adopted in a Final Order issued by the Commission in 1988. In January 1990, the First District Court of Appeal affirmed the Commission's decision. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). As a result of the foregoing, Respondent hired Petitioner as a full-time social studies teacher for the 1990- 1991 school year. Petitioner's Second Case. At the end of the 1990-1991 school year, Respondent determined that Petitioner's contract would not be renewed. Petitioner subsequently filed a second complaint with the Commission alleging, among other things, retaliation. Petitioner simultaneously filed a complaint with the EEOC alleging violations of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In March 1992, the Commission issued a No Cause Determination finding that Petitioner had not shown a prima facie violation of Chapter 760, Florida Statutes, and that Respondent had "articulated and substantiated" a legitimate nondiscriminatory reason for its decision not to renew Petitioner's contract. In October 1992, the EEOC issued a similar determination. In January 1993 Petitioner filed a Complaint in the Circuit Court of the Second Judicial Circuit, Leon County, Florida. This Complaint was designated Case No. 93-200 (hereinafter referred to as the "State Court Case"). The State Court Case was brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In particular, Petitioner alleged that Respondent had discriminated against him when it failed to renew his teaching contract following the 1990-1991 school year and that it had subsequently discriminated against him by failing to hire him for positions for which he had applied between 1991 and the filing of the Complaint in the State Court Case. Petitioner alleged that the Respondent had discriminated against him on the basis of his race and gender. The State Court Case was initially assigned to Judge E. Steinmeyer, III. Judge Steinmeyer initially ruled that the trial would be limited to a consideration of whether Respondent discriminated against Petitioner between August 1990 and January 19, 1993. Judge Steinmeyer entered this order on or about September 27, 1996. The State Court Case was subsequently transferred to Judge Charles D. McClure. While hearing pre-trial motions, Judge McClure amended Judge Steinmeyer's ruling concerning the limit of the scope of the trial. Judge McClure ruled that Petitioner would also be allowed to introduce evidence concerning alleged discrimination by Respondent for the period beginning January 1993 and ending at the date of the trial of State Court Case. Although Judge McClure did not enter a written order to this effect, he did nonetheless enter a valid order of the court. Transcript of Pre-Trial Hearing of January 6, 1997, Page 28. The State Court Case was transferred five times before being assigned to Judge Terry P. Lewis. Judge Lewis issued a Pretrial Order on October 8, 1998, in which he explained some of the history of the case and reaffirmed Judge McClure's earlier order: Judge Charles McClure was next assigned to this case. In pretrial motions, the parties sought to revisit issues with him. He amended Judge Steinmeyer's Order and indicated the [Petitioner] would be allowed to introduce evidence of the failure to rehire subsequent to January of 1993, up to the date of trial. . . . . There is a value in consistency and, all things being equal, my preference is to abide by the prior rulings of the predecessor judges and to make my rulings as consistent as possible with theirs. . . . Pursuant to Judge Lewis's Pretrial Order, Petitioner was allowed to present evidence in the State Court Case concerning alleged discrimination by Respondent against Petitioner on the basis of his race and gender during the period 1990 through October 1998. The State Court Case trial commenced October 12, 1998, and ended in a jury verdict on or about October 15, 1998. The jury ruled in favor of Respondent on all counts, finding no retaliation and no discrimination on the basis of race or gender, and judgment was entered for Respondent. The judgment was subsequently affirmed per curiam. Weaver v. School Board of Leon County, 757 So. 2d 504 (Fla. 1st DCA 2000). Petitioner's Third Case. While the State Court Case was pending, Petitioner filed a complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:97cv272-RH (hereinafter referred to as the "First Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for 32 positions which he had applied for from 1994 to 1995, had discriminated against him on the basis of his race and gender. Summary Judgment was granted in March 1999 in the First Federal Court Case. In granting Summary Judgment, the court accepted two Reports and Recommendation issued by Magistrate William C. Sherrill, Jr. In one of those Reports Magistrate Sherrill concluded, among other things, that a non- discriminatory reason had been proven by Respondent for its refusal to hire Petitioner: that Petitioner's job performance during the 1990-1991 school year had been inadequate. The decision to grant Summary Judgment in the First Federal Court Case was affirmed on appeal by the United States Court of Appeals for the Eleventh Circuit in an unpublished opinion. Weaver v. School Board of Leon County, (Case No. 99- 11045, March 29, 2000). In its decision, the Eleventh Circuit stated: The district court correctly concluded that there were no genuine issues of material fact precluding summary judgment for the Board because Weaver failed to show that the Board's articulated reason for not hiring him was a pretext for race or gender discrimination. The Board stated that it did not hire Weaver during the 1994-1995 school year because of prior unsatisfactory and inadequate performance during the 1991- 1992 [sic] school year in which he was a full-time seventh grade Social Studies teacher at Leon County's Deerlake and Nims Schools. Weaver has wholly failed to bring forward sufficient evidence to demonstrate that these reasons for failing to hire him were a pretext for discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987). Petitioner's Fourth Case. In 2000, Petitioner filed a second complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:00cv91-WS (hereinafter referred to as the "Second Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for positions which he had applied from 1995 to 2000, had discriminated against him on the basis of his race, age, and gender, and in retaliation for previous filed complaints. Respondent moved to dismiss the complaint in the Second Federal Court Case arguing, among other things, that two previous cases, the State Court Case and the First Federal Court Case, had determined that Respondent had not discriminated against Petitioner in refusing to hire him after the 1990-1991 school year and, therefore, Petitioner should not be allowed to continually apply for jobs with Respondent and then file a suit if he is not hired. In a Report and Recommendation issued in the Second Federal Court Case, Magistrate Sherrill wrote: [Petitioner's] pleading demonstrates that there are no new facts, no significant changes, but simply that [Respondent] continues to refuse to hire [Petitioner]. This conduct was deemed nondiscriminatory in the prior litigation between the parties. Four courts have now held that [Respondent's] actions were lawful and, thus, the issue may not be raised again in subsequent actions. See Kremer, 456 U.S. at 467 n. 6, 102 S.Ct. at 1890, n. 6. Unless there are material and significant changes in the facts underlying the dispute between these two parties, [Petitioner] may not continue to bring discrimination claims against [Respondent] every time he is denied employment. Judge William Stafford adopted the Report and Recommendation and ordered that Petitioner was enjoined from filing any lawsuit in Federal court alleging discrimination against him by Respondent unless Petitioner pays attorney's fees of Respondent incurred in the Second Federal Court Case and attaches affidavits from persons other than Petitioner setting forth competent evidence of discrimination in any future complaint. Petitioner's Current Complaint and Request for Hearing; Petitioner's Fifth Case. Petitioner is an African-American male. On September 25, 1995, Petitioner filed a Charge of Discrimination (hereinafter referred to as the "FCHR Complaint") with the Commission. Petitioner alleged that Respondent had discriminated against him on the basis of race, gender, and retaliation. In particular, Petitioner alleged that Respondent had discriminated against him "[i]n February of 1991 and continuing through September 19, 1995 " Some of the allegations of the FCHR Complaint relate to alleged acts of discrimination which occurred more than 365 days before the FCHR Complaint was filed. By filing the FCHR Complaint on September 25, 1995, the allegations contained therein should have been limited to alleged acts of discrimination which occurred between September 26, 1994, and September 25, 1995. On November 24, 1999, more than three years after Petitioner filed the FCHR Complaint, the Commission issued a "Notice of Determination: No Jurisdiction," and a "Determination: No Jurisdiction." The Commission gave the following explanation, in relevant part, of why it had concluded it had no jurisdiction over the FCHR Complaint: In his Complaint of Discrimination, Complainant asserted that between February, 1991, and September, 1995, he was not considered by Respondent for teaching positions for which he made application. Counsel for Respondent argues that Complainant's charges must be dismissed as a matter of law. Counsel states, "[M]r. Weaver's claims of discrimination against the School Board of Leon County, including but not limited to the 1994- 95 school year, and continuing to October 1988 [sic] have been litigated in both state and federal courts in favor of the school board." Information provided to the Commission indicates that in January, 1993, Complainant filed a civil suit in the Circuit Court of the Second Judicial Circuit. Case number "93-200" was assigned to the case. The complaint states, inter alia, that following the 1990-91 school year, Complainant applied for positions with Respondent and was not considered. Judge McClure of the Second Judicial Circuit held that Complainant would be permitted to introduce evidence of Respondent's failure to rehire subsequent to January, 1993, up to the date of the trial. Case number 93-200 was litigated before a jury of the Second Judicial Circuit. A Verdict Form provided to the Commission and dated October 15, 1998, indicates that Complainant was not retaliated against and that Complainant was not discriminated against because of his race or sex in Respondent's 'decisions not to hire him (Complainant) following the 1990-91 school year.' Therefore, the Commission's jurisdiction over the Complaint of Discrimination was terminated as a result of the issues being litigated in the Second Judicial Circuit. Inasmuch as the Commission lacks jurisdiction over the Complaint, the Determination will not address the merits of the allegations of discrimination contained in the Complaint. On December 25, 1999, Petitioner filed a Petition for Relief with the Commission. The Petition for Relief was filed three years and three months after Petitioner filed the FCHR Complaint. In the Petition for Relief, Petitioner relates a long history between himself and Respondent. That history for purposes of this proceeding goes back to at least 1979 when Petitioner was employed as a substitute and temporary teacher by Respondent. Petitioner goes on to contend that Respondent has discriminated against him from at least 1985 through the date of the Petition for Relief. The relevant allegations which may be considered, however, are limited by the dates alleged in the FCHR Complaint, February 1991 to September 19, 1995, since those were the only dates the Commission had an opportunity to consider before referring the matter to the Division of Administrative Hearings. On February 1, 2000, the Commission filed the Petition for Relief with the Division of Administrative Hearings and requested that an administrative law judge be assigned to conduct all necessary proceedings. On February 4, 2000, Respondent filed Respondent's Motion to Dismiss Petitioner's Petition for Relief. Respondent argued that the Petition for Relief should be dismissed for two reasons: (a) the Petition for Relief is barred by the statute of limitations of Section 760.11, Florida Statutes; and (b) the allegations of the Petition for Relief are barred by the doctrine of res judicata. An Order on Motions was entered on June 20, 2000, disposing of numerous motions filed in this matter, and disposing of Respondent's Motion to Dismiss Petitioner's Petition for Relief as follows: Respondent has filed a Motion to Dismiss Petitioner's Petition for Relief in which two grounds have been raised for the dismissal of the Petition for Relief in this case. Petitioner has filed a response to the Motion. Both grounds for the dismissal of this case have merit. Therefore, a recommended order of dismissal will be entered in this case within thirty-five days of the entry of this Order: July 24, 2000. The parties will be given an opportunity to file proposed recommended orders within fifteen days of the date of this Order: July 5, 2000. On July 25, 2000, a Recommended Order of Dismissal was entered recommending that this case be dismissed. The Recommended Order recommended dismissal of: Those portions of the Petition for Relief dealing with events that occurred more than 365 days before Petitioner filed the FCHR Complaint; The entire Petition for Relief due to the failure to comply with Section 760.11, Florida Statutes; and 3. The entire Petition for Relief based upon the doctrine of res judicata. On November 1, 2001, an Order Remanding Petition for Relief from an Unlawful Employment Practice (hereinafter referred to as the "Order of Remand") was entered by the Commission. In entering the Order of Remand, the Commission rejected the second and third reasons for recommending that the Petition for Relief be dismissed and returned the matter to the Division of Administrative Hearings. The Commission failed to address the first reason. The Order of Remand was filed with the Division of Administrative Hearings on November 30, 2001. On December 24, 2001, Respondent filed Respondent's Second Motion to Dismiss Petitioner's Petition for Relief. At the time the Motion was filed, the Division of Administrative Hearings did not have jurisdiction over this matter, because the Order of Remand had not yet been accepted. The Order of Remand was subsequently accepted and the file of the Division of Administrative Hearings was reopened by an Order Reopening File entered on February 13, 2002. The Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was filed more than 20 days after the Commission's Order of Remand was entered. It was filed, however, before jurisdiction over this matter was accepted by the Division of Administrative Hearings. The Second Motion to Dismiss was, therefore, filed within less than 20 days after the file in this case was reopened. A motion hearing was scheduled for July 23, 2002, to consider the Second Motion to Dismiss. During the hearing, Petitioner was asked on more than one occasion to explain any differences in the allegations of this matter and the State Court Case. Other than suggesting that this case involves allegations of gender discrimination and the State Court Case did not, a suggestion refuted by the jury verdict in the State Court Case, Petitioner was unable to state any difference. Indeed, the material allegations of this matter and the State Court Case, the First Federal Court Case, and the Second Court Case are no different. At the conclusion of the July 23, 2002, motion hearing, it was announced that Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was granted, that a recommended order would be entered recommending dismissal of this matter, and that the parties could file proposed recommended orders within 20 days of the motion hearing. On August 14, 2002, an Order was entered memorializing the rulings entered at the July 23, 2002, motion hearing. Petitioner has alleged in three previous court proceedings that Respondent's failure to hire him since 1991, was based upon race and gender. In one of those cases the issue was tried before a jury, and it was determined that Respondent had articulated a reasonable reason for refusing to hire Respondent-his unsatisfactory and inadequate performance as a teacher during the 1990-1991 school year-and that Petitioner had failed to prove that the reason for Respondent's refusal was a pretext. Two subsequent cases recognized this verdict. Petitioner continues to disagree with those judicial determinations and is attempting for a fourth time to litigate the same issue. Should he fail here, no doubt he will continue to file future proceedings. There is, however, no new issue to be tried. The doctrine of collateral estoppel should be applied to dismiss this matter. This case involves the same Petitioner bringing the same action against the Respondent that has been fully litigated and determined through a final decision of a court of competent jurisdiction in the State Court Case, the First Federal Case, and the Second Federal Case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by James J. Weaver. DONE AND ENTERED this 21st day of August, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 21st day of August, 2002. COPIES FURNISHED: James J. Weaver 1424 Jake Street Tallahassee, Florida 32310 William R. Mabile, III, Esquire William D. Horgan, Esquire Fuller, Johnson & Farrell, P.A. 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302-1739 C. Graham Carothers, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services improperly awarded a contract to National Health Laboratories, Inc. for the reasons set forth in the petition.
Findings Of Fact By Invitation to Bid mailed March 26, 1993 (ITB), the Dade County Public Health Unit requested bids on an annual contract for the performance of clinical laboratory test services. The Dade County Public Health Unit is under the Department of Health and Rehabilitative Services (HRS). The contracting agency shall hereafter be referred to as HRS. The ITB called for the opening of bids on April 12, 1993. Six bids were timely submitted. The apparent low bid was submitted by National Health Laboratories, Inc. (NHL). The NHL bid was $202,271. The second low bid was submitted by Continental Medical Laboratory, Inc. (CML). The CML bid was $241,100. HRS issued a notice of intent to award the contract to NHL. CML timely protested. There is no issue as to the responsiveness of the CML bid. The only issue as to the responsiveness of the NHL bid concerns the matters raised by CML. CML's petition alleges that the bid of NHL was defective because the Sworn Statement Pursuant to Section 287.133(3)(a), Florida Statutes, on Public Entity Crimes (Public Entity Crime Affidavit) was incomplete, an agreement attached to the Public Entity Crime Affidavit did not relieve NHL from disqualification concerning CHAMPUS fraud, and NHL should be disqualified from bidding because it failed timely to inform the Department of Management Services of the company's conviction of a public entity crime. Paragraph 10 of the General Conditions of the ITB allows HRS to "waive any minor irregularity or technicality in bids received." However, special conditions provide, in part: PUBLIC ENTITY CRIMES Any person submitting a bid or proposal in response to this invitation must execute the enclosed [Public Entity Affidavit], including proper check(s), in the space(s) provided, and enclose it with the bid/proposal. Failure to complete this form in every detail and submit it with your proposal will result in immediate disqualification of your bid. The Public Entity Crime Affidavit completed by NHL and submitted with its bid was executed and notarized on April 9, 1993. Paragraph six of the form affidavit states: Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity, or an affiliate of an entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] The next paragraph of the Public Entity Crime Affidavit form states: I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH I (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. In completing the Public Entity Crime Affidavit, NHL penned in, just over the second alternative that discloses a conviction, "See Attached." The attachment was a copy of an Agreement dated December 31, 1992, between NHL and the "state of Florida" (Settlement Agreement). The agreement was executed by an NHL officer and the Director, Medicaid Fraud Control Unit of the Auditor General Office. The Auditor General's Office is not part of the Department of Management Services. The Settlement Agreement concerns invoices from NHL to the Florida Medicaid program for certain cholesterol and iron tests from January 1, 1987, through November 30, 1992. The Settlement Agreement requires NHL to pay as restitution to the State of Florida $1,470,917. In return, the state of Florida, for itself and on behalf of its agents and assigns, will release and forever discharge NHL, its current or former officers, directors, employees, agents, shareholders, affiliates, assigns and successors from any and all claims, actions, demands or causes of action including penalties or interest against any of them, either civil or criminal, as regards Medicaid reimbursement [for certain cholesterol and iron tests] between January 1, 1987 and November 30, 1992, except that nothing contained in this Settlement Agreement shall preclude the state Medicaid program from seeking recoupment of payments made [for certain cholesterol tests] during the period covered by this Settlement Agreement, subject to the understanding that NHL will contest any such recoupment action on the grounds that such payments were appropriate. The Settlement Agreement also provides: The state of Florida agrees that neither the Settlement Agreement nor any federal criminal conviction or other sanction of the corporation or a current or former officer or employee of NHL as regards claims for Medicaid reimbursement [for certain cholesterol and iron tests] [b]etween January 1, 1987 and November 30, 1992 will be the basis for a state exclusion of NHL from the Florida Medicaid program. NHL is a company that provides laboratory testing nationally and receives payment for many of its services from government sources, such as Medicaid, Medicare, or CHAMPUS. CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services. During the period of 1987 through 1992, NHL supplied certain cholesterol and iron testing, in addition to that specifically requested by the health-care provider, at little or no cost to the health-care provider. But NHL invoiced various government payors at higher rates. On December 18, 1992, NHL entered guilty pleas to two counts of criminal fraud involving these practices as they concern the CHAMPUS program. These pleas were the bases of a conviction and sentence that included a criminal fine of $1,000,000. One or two former officers entered guilty pleas to charges of criminal fraud involving these practices as they concern the Medicaid program. As part of the settlement, NHL paid the United States the sum of $100,000,000. At the same time, NHL was negotiating with various states, including Florida, with respect to the above-described billing practices. On December 8, 1992, the Director of the Medicaid Fraud Control Unit in the Florida Office of the Auditor General wrote a letter to NHL confirming a proposed settlement. The conditions of the settlement are incorporated in the above- described Settlement Agreement. On December 17, 1992, the Assistant Secretary for Medicaid in HRS mailed a letter to NHL agreeing that HRS would not take administrative action for the above-described cholesterol and iron claims submitted for reimbursement by NHL to the Florida Medicaid program. NHL did not inform the Department of Management Services of the guilty plea, conviction, and $1,000,000 criminal fine. However, based probably on information received in early February 1993 from another governmental entity in Florida, the Department of Management Services, on February 8, 1993, sent a letter to NHL advising it that the Department had received information that NHL had been convicted of a public entity crime and requesting copies of the charges and final court action. NHL complied and the Department's investigation is continuing. On February 18, 1993, HRS Deputy Secretary for Health, sent a memorandum to all of the County Public Health Units directors and administrators advising them of concerns about laboratory fraud and attaching a recent report concerning the NHL case. The report described the NHL guilty pleas, conviction, and sentencing, as well as the business practices that led to the prosecution. By memorandum dated March 18, 1993, HRS Assistant Secretary for Medicaid informed HRS Depute Secretary for Health that the Auditor General had entered into the Settlement Agreement. The memorandum states that, on December 17, 1992, the Assistant Secretary signed an agreement with NHL not to terminate it from the Florida Medicaid program, which was the "same treatment afforded many other providers--including [County Public Health Units]--who overbilled the Medicaid program. The Assistant Secretary's memorandum describes the settlement as requiring NHL to make "full restitution," although the $1.4 million in restitution involves only the iron test and the State of Florida and NHL may still litigate whether any reimbursement is due for the cholesterol tests. The failure of NHL to check the second alternative on the Public Entity Crime Affidavit did not confer an economic advantage on NHL in the subject procurement. The material attached to the affidavit sufficiently informed HRS of the criminal conviction of NHL. Likewise, the omission of any mention of CHAMPUS claims in Paragraphs two and three of the Settlement Agreement did not confer any economic advantage on NHL in the procurement. The purpose of mentioning only Medicaid in the Settlement Agreement is that Florida has no jurisdiction over the CHAMPUS program. NHL was concerned only that Florida not terminate NHL's participation in the program over which Florida had jurisdiction--the Medicaid program. These references to "Medicaid reimbursement" are merely descriptive and are not intended to limit the scope of the exoneration purportedly effectuated in the Settlement Agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the bid protest of Continental Medical Laboratory, Inc. ENTERED on August 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3951BID Treatment Accorded Proposed Findings of Respondent and Intervenor 1-8 and 11: adopted or adopted in substance. 9-10 and 12-15: rejected as subordinate. 16-31: adopted or adopted in substance. 32-37: rejected as subordinate and irrelevant. 38-43 and 45-48: rejected as irrelevant and legal argument. 44: adopted. 49-50: adopted as to absence of material variations. 51: rejected as subordinate and recitation of evidence. Treatment Accorded Proposed Findings of Petitioner 1-14 and 16-17: adopted or adopted in substance. 15: rejected as legal argument and unsupported by the appropriate weight of the evidence. 18-21: rejected as subordinate, repetitious, and legal argument. 22-27: adopted in substance. 28: rejected as irrelevant. 29 (first sentence): rejected as repetitious and irrelevant. 29 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 30: adopted, but the period of the delay of DMS review in this case was too short to make any difference. 31: rejected as unsupported by the appropriate weight of the evidence with respect to a delay of such a short duration. 32: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133. 33: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133, at least under the facts of the present case. 34: rejected as irrelevant. 35: rejected as legal argument and unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Geoffrey Kirk Adorno & Zeder, P.A. 2601 S. Bayshore Dr., Ste. 1600 Miami, Florida 33133 Morton Laitner, District Counsel District 11 Legal Office 401 NW 2d Ave., Ste. N-1014 Miami, Florida 33128 Thomas F. Panza Seann Michael Frazier Panza, Maurer 3081 E. Commercial Blvd., Ste. 200 Ft. Lauderdale, Florida 33308 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the instant proceeding was instituted within the time requirements of Section 120.54(4)(b), Florida Statutes; and If the first issue had been answered affirmatively, whether a proposed amendment to Rule 33-3.004(12), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Notice of a proposed amendment to Rule 33-3.004(12), Florida Administrative Code (hereinafter referred to as the "Proposed Rule"), was published by the Respondent, the Department of Corrections, in the Florida Administrative Weekly, Volume 17, Number 21, page 2318, on May 24, 1991. Pursuant to Section 120.54(4)(b), Florida Statutes, challenges to proposed rule amendments "must be filed with the division within 21 days after the date of publication of the notice. " Pursuant to Section 120.54(4)(b), Florida Statutes, challenges to the Proposed Rule were required to be filed with the Division of Administrative Hearings on or before June 14, 1991. Notice of the existence of the Proposed Rule was placed on a library bulletin board at Avon Park Correctional Institution. The Petitioner learned of the Proposed Rule in early June, 1991. The evidence failed to prove that the exact date notice was placed on the bulletin board. On June 11, 1991, the Petitioner signed a Petition for Determination of Validity of Proposed Rule (hereinafter referred to as the "Petition"), challenging the Proposed Rule. The Petition was placed in a dorm mail box by the Petitioner at approximately 5:30 p.m., Tuesday, June 11, 1991. The Petition was in a sealed envelope, was marked "legal mail" and had stamps on it. The usual procedure for processing mail at Avon Park Correctional Institution which would have applied to the mailing of the Petition was generally as follows: The mail placed in the dorm mail box, including the Petition, would have been picked up for processing the day it was placed there; b The mail would have been taken to the control room and processed (sorted and stamps added, if necessary); c. Mail placed in the mail box in which the Petition was placed and at the time it was placed there by the Petitioner would have been taken to the local United States Post Office on Wednesday, June 12, 1991. No log of outgoing legal mail was kept in June, 1991. In light of the procedure normally followed by Avon Park Correctional Institution, the Petitioner only allowed two days for the Petition to travel to the United States Postal service in Avon Park, Florida, and, from there, to the Division of Administrative Hearing in Tallahassee, Florida: one day from Wednesday, June 12, 1991, the date the Petition was delivered to the United States Post Office, to Thursday, June 13, 1991, and one day from Thursday, June 13, 1991, to Friday, June 14, 1991. The Petition was not placed in the dorm mail box until eighteen days after notice of the Proposed Rule was published. Mail received by the Division of Administrative Hearings is generally handled in the following manner: All mail is opened the day it is delivered; Once opened, the envelope is disposed of and the contents are stamped with the time and date delivered. This date constitutes the date of "filing" of pleadings; The contents of the mail are then processed. The Petition in this case was not filed until June 19, 1991, eight days after it was placed in the custody of the Respondent. The evidence failed to prove that the time the Petitioner allowed for the mailing of the Petition was reasonable: placing the Petition in the dorm mail box at 5:30 p.m., when the Petitioner should have known that the mail could not reasonably be taken to the United States Post Office until the next day, June 12, 1991, only allowed two days for the Petition to be delivered by the postal service. The evidence failed to prove that the Respondent was responsible for the late filing of the Petition in this case. The Petitioner failed to file the Petition within twenty-one days after the publication of notice of the Proposed Rule.
