The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of December, 2004.
The Issue This is a bid protest proceeding in which the Petitioner, the second lowest bidder on the subject project, asserts that it should be awarded a contract on the grounds that the bid submitted by the lowest bidder is a non-responsive bid.
Findings Of Fact In their Joint Stipulation of Facts, as supplemented, all parties stipulated to the following facts: The Project On March 9, 2000, SBBC invited bids for the provision of all materials and labor necessary for the construction of classroom building additions at Boyd Anderson High School (Project Number 1741-98-01) and Piper High School (Project Number 1901-08-01). The foregoing procurements shall hereinafter collectively be referred to as the "Project." Bidding and Proposed Contract Documents Section 1.01 of the Instructions to Bidders contained within the Project specifications issued on March 9, 2000 is entitled "Bidding and Proposed Contract Documents." Subsection A of this provision states as follows: Bidding Documents include the Bidding Requirements and the Contract Documents. The Bidding Requirements consist of the following primary documents and various other administrative forms and documents associated with them: 00101 Advertisement for Bids 00200 Instructions to Bidders 00215 Application for Bidding Documents 00217 Bidder’s Information Sheet 00220 Bidder’s Request for Information 6. 00225 Bidder’s Substitution Request 7. 00300 Information Available to Bidders 8. 00410 Bid Form 9 00420 Bid Security Form 10. 00425 Certificate of Intent 11. 00433 Subcontractors List 12. 00435 Schedule of Values 13. 00457 Drug-Free Workplace Certification 00460 Trench Act Compliance Statement 00465 M/WBE Program Requirements 00470 Letter of Intent: M/WBE Subcontractor Participation 00475 Summary: M/WBE Subcontractors Participating 00480 Unavailability Certification: M/WBE Subcontractor Participation 00485 Monthly M/WBE Subcontractor Utilization Report Section 1.01B of the Instructions to Bidders issued on March 9, 2000 provides as follows: The proposed Contract Documents consist of the following primary documents and various other administrative forms and documents associated with them: 00510 Notice of Award 00520 Agreement Form 00550 Notice to Proceed 00600 Performance Bond 00610 Payment Bond Bond 00620 Subcontractor’s Performance 00625 Subcontractor’s Payment Bond 00640 General Release and Full Release of Lien 00700 General Conditions of the Contract 00800 Supplementary Conditions of the Contract 11. 00890 Permits 12. 00910 Addenda 13. 00930 Clarifications and Proposals 14. 00940 Modifications Drawings Specifications (Divisions 1 through 16) Section 4.03 of the Instructions to Bidders contained in the Project specifications issued by SBBC on March 9, 2000 is entitled "Submission of Bids" and subsection A of that section provides in part as follows: "All copies of the Bid, the bid security, and other required Bidding Documents shall be enclosed in a sealed opaque envelope. " Article 4 of the Instructions to Bidders within the Project specifications issued on March 9, 2000 is entitled "Bidding Procedures." Section 4.01 of that Article is entitled "Form and Style of Bids" and subsection A of that section provides as follows: Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid: 00410, Bid Form 00420, Bid Security Form 00457, Drug-Free Workplace Certification 00460, Trench Act Statement Subsections 4.01(J) and (K) of the Instructions to Bidders within the Project specifications issued on March 9, 2000 provide as follows: Each Bidder will be required to comply with Section 287.087, Florida Statutes, on Drug-Free Workplace, which requires executing the sworn statement found on Document 00457, Drug-Free Workplace Certification. This statement shall be signed and notarized and submitted with the Bid. Each Bidder will be required to comply with Chapter 90-96 of the Laws of Florida (The Trench Safety Act) and OSHA Standard 29 C.F.R. s. 1926.650 Subpart P. Each Bidder shall submit with its Bid a completed, signed and notarized copy of Document 00460, Trench Act Compliance Statement. Subsection B of Section 4.03 of the Instructions to Bidders issued on March 9, 2000 provides in part as follows: "Bids shall be delivered to the address listed above prior to the time and date for receipt of Bids. " 7b Article 6 of the Instructions to Bidders states as follows: Article 6 Post-Bid Information Contractural Status of Post-Bid Information A. Post bid information shall become a part of the Contract upon its approval by the Owner. Submittals Minority/Women Business Enterprise (M/WBE) Requirements Within seven consecutive calendar days after the bid opening, the apparent low Bidder, and any other Bidder requesting to remain in competition for the Contract, must submit M/WBE documentation as required in Document 00465, M/WBE Program Requirements. Section 2.02 on Public Entity Crimes Article 2 of the Instructions to Bidders issued on March 9, 2000 is entitled "Bidder’s Representations." Section 2.02 of Article 2 is entitled "Public Entity Crimes" and states as follows: Section 287.133(2)(a), Florida Statues [sic], states that a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. By submitting a Bid, the Bidder represents that restrictions related to public entity crimes stated in Section 287.133(2)(a), Florida Statues [sic], do not apply to either his own company, or that of his subcontractors or suppliers. Each of the project specifications issued by SBBC over the past twelve months and ten procurements, including this Project, has contained the provisions set forth in Section 2.02. The text of Section 2.02 was not located near the place where bidders were to sign their Bid Form and bidders were not required to submit the text of Section 2.02 with their bid proposals. Document 00410: Bid Form within the Project specifications issued by SBBC on March 9, 2000 contains a declaration by the Bidder that it has "examined the plans and specifications for the work and proposed contractual documents relative thereto, and has read all special provisions furnished prior to the opening of Bids. . . ." The Bid Form further states that the bid price submitted is "in full and complete accordance with the shown, noted, described and reasonably intended requirements of the Bidding Documents. " Sworn Statement on Public Entity Crimes Document 00455: Sworn Statement on Public Entity Crimes was not included within the set of Project specifications or listed in Document 00010: Table of Contents that were issued on March 9, 2000. During the twelve months preceding the instant bid recommendation, SBBC received bids on nine sets of project specifications other than those for the instant project. Four of those sets of project specifications included Document 00455: Sworn Statement on Public Entity Crimes and listed that form on their tables of contents. None of those sets of project specifications listed Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders. None of those sets of project specifications listed Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid. Each of those sets of project specifications included Section 2.02 on Public Entity Crimes in its Instructions to Bidders. The set of project specifications issued for the instant Project on March 9, 2000 did not list Document 00455: Sworn Statement on Public Entity Crimes on its table of contents. The March 9, 2000 set of project specifications did not list Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders. The March 9, 2000 set of project specifications did not list Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid. The March 9, 2000 project specifications included Section 2.02 on Public Entity Crimes within its Instructions to Bidders. Subsequent to the bid date for the instant Project, SBBC received bids for two projects. The project specifications for the first project following the instant Project (a) listed Document 00455: Sworn Statement on Public Entity Crimes in its table of contents; (b) did not list Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders; (c) did not list Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid; and (d) included Section 2.02 on Public Entity Crimes within its Instructions to Bidders. The project specifications for the second project following the instant Project (a) listed Document 00455: Sworn Statement on Public Entity Crimes in its table of contents; (b) listed Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders; (c) listed Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid; and (d) included Section 2.02 on Public Entity Crimes within its Instructions to Bidders. Addendum No. 4 Prior to issuance of Addendum No. 4 for the Project, SBBC received bids for another construction project. In reviewing the bid proposals, representatives of SBBC’s Facilities Department noticed that the copy of Document 00457: Drug-Free Workplace Certification provided within that project’s specifications was lacking a signature line to be executed by a bidder. SBBC’s project managers were instructed to correct this omission in any project specifications that were pending. SBBC’s project manager assigned to the instant Project discussed this instruction with a colleague who remarked that the same omission may exist in Document 00455: Sworn Statement on Public Entity Crimes. The project manager assigned to the instant Project then issued Addendum No. 4. "Addenda" are defined by Section 1.02(B) of the Instructions to Bidders issued by SBBC on March 9, 2000 as "[w]ritten or graphic instruments issued by the Owner prior to the execution of the Contract which modify or interpret the Bidding Documents by additions, deletions, clarifications or corrections." On April 6, 2000, SBBC issued Addendum No. 4 to the Project specifications. Addendum No. 4 states in pertinent part as follows: The following clarifications, amendments, additions, deletions, revisions and modifications form a part of the proposed Contract Documents and change the original bidding documents only in the manner and to the extent stated. * * * Changes to the Project Manual: See attached 1 page. * * * CHANGES TO THE SPECIFICATIONS DOCUMENT 00010 TABLE OF CONTENTS, Page 1: Add the following: Document Number 00455: Sworn Statement on Public Entity Crimes Note: A copy of this document is included as an attachment to this addendum. Document Number 00455 must be signed and included with the bidding documents. DOCUMENT 00457 DRUG-FREE WORKPLACE CERTIFICATION, Page 1 of 2 and 2 of 2: This document has been revised to include signature/date line. Note: A copy of this document is included as an attachment to this Addendum. Document Number 00457 must be signed and included with the bidding documents. A copy of Document 00455: Sworn Statement on Public Entity Crimes is attached hereto as Joint Exhibit "A" and is herein incorporated by reference. Document 00455: Sworn Statement on Public Entity Crimes contains instructions that it is "to be signed in the presence of a notary public or other officer authorized to administer oaths." Similar instructions are set forth on Document 00457: Drug-Free Workplace Certification and Document 00460: Trench Act Compliance Statement. The Bid Proposals On April 13, 2000, SBBC received bids from six (6) bidders for the Project. The bidders and their bids are as follows: DiPompeo Construction Corp. ($7,130,000); Padula & Wadsworth Construction, Inc. ($7,160,000); James B. Pirtle Construction Company, Inc. ($7,540,000); Rovel Construction, Inc. ($7,540,000); Danville Findorff, Inc. ($7,690,000); and G.T. McDonald Enterprises, Inc. ($8,900,000). The bid proposal submitted for the Project by DiPompeo Construction Corp. (hereinafter referred to as "DiPompeo") was not accompanied by any executed copies of Document 00455: Sworn Statement on Public Entity Crimes. DiPompeo’s bid proposal acknowledged its receipt of Addendum No. 4. On April 20, 2000, DiPompeo submitted to SBBC two copies of Document 00455: Sworn Statement on Public Entity Crimes and its Minority and Woman-Owned Business Enterprise (M/WBE) participation lists. One copy of DiPompeo’s sworn statement is appended hereto as Joint Exhibit "B" and is herein incorporated by reference. The bid proposals submitted for the Project by PADULA and the other four (4) bidders were each accompanied by two properly executed copies of Document 00455: Sworn Statement on Public Entity Crimes. A copy of PADULA’s executed Document 00455: Sworn Statement on Public Entity Crimes is appended hereto as Joint Exhibit "C" and is herein incorporated by reference. Each of the six bidders submitted two properly executed copies of Document 00457: Drug-Free Workplace Certification and Document 00460: Trench Act Compliance Statement. Inconsistencies or Ambiguities Section 3.02 of the Instructions to Bidders issued by SBBC on March 9, 2000 is entitled "Interpretation or Correction of Bidding Documents." Subsection A of that section provides as follows: The Bidder shall carefully study and compare the Bidding Documents with each other, and with other work being bid concurrently or presently under construction to the extent that it relates to the Work for which the Bid is submitted, shall examine the site and the site and local conditions, and shall at once report to the Owner errors, inconsistencies, or ambiguities discovered. Section 3.02B specifies a form for use by Bidders and Sub-bidders requiring clarification or interpretation of the Bidding Documents (or reporting errors, inconsistencies or ambiguities). No prospective bidder reported any errors, inconsistencies or ambiguities to SBBC or sought an interpretation of the Bidding Documents or advised of a conflict within the Bidding Documents prior to the submission of bids. A Responsive Bid - Waivable Informalities Section 1.02(M) of the Instructions to Bidders contained within the Project specifications issued on March 9, 2000 defines a "Responsive Bid" provides as follows: One in which the Bidder describes the Work in the same way as it is described in the Advertisement for Bids. The responsiveness of the Bidder is determined by the Owner’s [SBBC’s] evaluation of the Bid’s conformance in all material respects to the Advertisement for Bids. If the Bidder has not unequivocally agreed to perform the exact work as reflected in the Bidding Documents, or if the Bidder has either omitted or substituted certain items or failed to properly submit all required Post- Bid Information as required in Article 6 below [M/WBE documentation], the Bid is not responsive and must be rejected. However, minor errors having no significant effect on the Bid may be ignored. Document 00101: Advertisement for Bids contained within the Project specifications issued on March 9, 2000 provides as follows: "The School Board of Broward County, Florida reserves the right to reject any and all Bids and to waive any informalities." Article 5 of the Instructions to Bidders issued on March 9, 2000 is entitled "Consideration of Bids" and Section 5.03C of that Article provides in pertinent part as follows: The Owner [SBBC] shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bidding Documents, or reject a Bid which is in any way incomplete, irregular, or otherwise non-Responsive. The Owner may waive any formality in the bid requirements and/or award or not award the contract in the best interests of The School Board of Broward County, Florida. Section 5.03 of the Instructions to Bidders issued on March 9, 2000 is entitled "Acceptance of Bid (Basis for Award)" and subsection B of that section provides as follows: It is the intent of the Owner [SBBC] to award a contract to the Responsible Bidder submitting the lowest Responsible Bid in accordance with the requirements of the Bidding Documents, within the funds available. I. Award Recommendations & Bid Protests On April 20, 2000, SBBC’s Facilities and Construction Management Department posted its initial recommendations for the award of the Project. These recommendations were prepared in consultation with SBBC’s attorneys. The recommendations were (A) to reject and disqualify the bid proposal submitted by DiPompeo due to its failure to submit an executed Document 00455: Sworn Statement on Public Entity Crimes and (B) to award a contract to PADULA as the low bidder meeting bid specifications. On April 24, 2000, a representative of SBBC’s Facilities and Construction Management Department informed PADULA that the award of a contract for the Project was being prepared for approval by SBBC. The representative also requested that PADULA complete fifteen post-award submissions within ten calendar days and notified PADULA that a contract closing meeting would be arranged. DiPompeo timely filed a notice of intent to protest and a formal written protest in accordance with the requirements of Section 120.57(3), Florida Statutes, regarding the recommended disqualification of its bid proposal and the proposed award of a contract to PADULA. On or about May 8, 2000, SBBC’s project manager prepared a response to the allegations of the bid protest supporting the recommendation to reject DiPompeo’s bid. On or about May 8, 2000, SBBC’s attorneys were informed of the co-existence of Section 2.02 of the Instructions to Bidders contained in the Project specifications issued on March 9, 2000 and the provisions of Addendum No. 4 regarding Public Entity Crimes. Pursuant to Section 120.57(3)(d), Florida Statutes, and Board Policy 3320, SBBC provided DiPompeo an opportunity to resolve its protest after receipt of DiPompeo’s formal written protest. An informal meeting for this purpose was conducted between SBBC’s designees and DiPompeo’s representatives on May 8, 2000. During the informal meeting with DiPompeo’s representatives, SBBC’s designees concurred with the argument of DiPompeo’s attorneys and the legal opinion of SBBC’s attorneys and determined (A) that the form was a redundancy in light of the provisions of Section 2.02 of the Instructions to Bidders and (B) that the failure of DiPompeo to submit an executed Document 00455: Sworn Statement on Public Entity Crimes with its bid proposal was a waivable formality or technicality. Based upon those determinations, SBBC’s designees directed that the award recommendations be re-posted to award a contract for the Project to DiPompeo. Subsequent to the informal meeting between SBBC designees and DiPompeo’s representatives, SBBC’s Facilities and Construction Management Department posted revised recommendations on May 17, 2000. The revised recommendation was to award a contract to DiPompeo as the low bidder meeting specifications. PADULA timely filed a notice of intent to protest and a formal written protest in accordance with the requirements of Section 120.57(3), Florida Statutes, regarding the revised recommendation to award a contract to DiPompeo for the Project. Pursuant to Section 120.57(3)(d), Florida Statutes, and Board Policy 3320, SBBC provided PADULA an opportunity to resolve its protest after receipt of PADULA’s formal written protest. An informal meeting for this purpose was conducted between SBBC’s designees and PADULA’s representatives on June 1, 2000. SBBC’s designees and PADULA’s representatives were unable to resolve the protest during the informal meeting and SBBC’s designees again voted to uphold the previous recommendation that DiPompeo be awarded the Project. PADULA submitted a request that its protest be referred to the Florida Division of Administrative Hearings for formal proceedings and submitted a costs bond pursuant to School Board Policy 3320. A copy of School Board Policy 3320 is attached hereto as Joint Exhibit "D" and is herein incorporated by reference. In the event a recommended order is rendered in these proceedings in favor of SBBC, SBBC requests that the administrative law judge reserve jurisdiction to award and assess costs in its favor. Document 00455: Sworn Statement on Public Entity Crimes was created by SBBC subsequent to the 1989 enactment of Section 287.133, Florida Statutes. The form was not created subsequent to the advertisement for bids for this Project. A copy of the Convicted Vendor List maintained by the Florida Department of Management Services as of the date of the bid opening is attached hereto as Joint Exhibit "E" and is herein incorporated by reference. The joint exhibits mentioned in and incorporated into the parties' Joint Stipulation of Facts are included in the record of this case, but are not physically attached to this Recommended Order.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Broward County School Board issue a final order dismissing the Petition in this case and denying all relief requested by the Petitioner. DONE AND ENTERED this 26th day of September, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 26th day of September, 2000.
The Issue The issue in this case is whether the Petitioner should be placed on the convicted vendor list.
Findings Of Fact On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for: a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988; a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.
