01-001902CVL Michael L. Cone And Cone Constructors, Inc. vs. Department Of Management Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, September 7, 2001.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. CONE AND CONE )

CONSTRUCTORS, INC., )

)

Petitioner, )

)

vs. ) Case No. 01- 1902CVL

)

DEPARTMENT OF MANAGEMENT )

SERVICES, )

)

Respondent. )

)

FINAL ORDER

This matter came before the Division of Administrative

Hearings by its assigned Administrative Law Judge, Fred L.

Buckine, after the parties submitted a Stipulated Settlement

(with attachments) that incorporated a waiver of the right to a

formal hearing and waiver of all rights to seek judicial review

or otherwise challenge or contest this Final Order.

APPEARANCES

For Petitioner : Michael Cone, pro se

5102 Longfellow Way

Tampa, Florida 33629

For Respondent : Julia P. Forrester, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner, Michael L. Cone, a

convicted felon, should be placed on the convicted vendor list

as defined in Section 287.133(1 )2(c), Florida Statutes.

PRELIMINARY STATEMENT

This matter began on February 6, 2001, when Respondent,

Department of Management Services, issued its notice of intent

to place Petitioner, Michael L. Cone, on the convicted vendor

list so as to disqualify Petitioner from conducting business

with the State of Florida.

Petitioner filed a petition for formal administrative

hearing on May 5, 2001. The Notice of Hearing was issued

setting the final hearing for June 11, 2001. Respondent's

Motion for Continuance, filed May 30, 2001, was granted and an

Order continuing final hearing until to August 2, 2001, was

issued June 4, 2001. Respondent's Motion For Sanctions for

failure to comply with Discovery and, in the Alternative, Motion

in Limine was filed July 5, 2001, and Petitioner's Response

thereto was filed July 13, 2001. An Order denying Respondent's

Motion for Sanctions was issued on July 19, 2001. Department of

Transportation, on behalf of Ken Morefield, under subpoena for

deposition, filed a Motion to Quash Subpoena and for Protective

Order was filed by Steven Ferst on July 24, 2001. An Order for

the Administrative Law Judge's signature was fax filed. Order

denying Motion to Quash Subpoena was issued on July 26, 2001.

On July 31, 2001, Respondent filed its Motion for Sanctions

against Petitioner for Failure to Comply with Discovery.

On August 1, 2001, the parties electronically submitted

their joint "Stipulation for Entry of Final Order" settlement

agreement (with two attachments) containing extensive stipulated

facts and incorporating as a part thereof a "plea agreement"

(attachment #1) with the State of Florida, Department of Legal

Affairs, Office of the Statewide Prosecution and a "settlement

agreement" (attachment #2) with the State of Florida, Department

of Transportation. The purpose of this Final Order is to adopt

the Stipulated Settlement Agreement (with attachments) as

required by Section 287.133(3)(e) 2.f, Florida Statutes.

FINDING OF FACT

1. As noted above in the Preliminary Statement, the

parties have entered into a Stipulated Settlement Agreement.

Their Stipulated Settlement Agreement(with attachments) includes

the following:

"STIPULATED FACTS"

1. Michael L. Cone, at all times pertinent

to this proceeding and to the conviction

upon which this proceeding is based, was an

affiliate of Cone Constructors, Inc., as

that term is defined in Section 287,133,

Florida Statutes.

2. On July 29, 1999, in Case No. 99-13256,

Michael L. Cone entered a plea of nolo

contendere and was adjudicated guilty by the

Circuit Court in and for Hillsborough

County, Florida, for the following crimes:

Money Laundering, in violation of Section

869.101(2)(a), Florida Statutes, a First

Degree Felony; Unlawful Compensation or

Reward for Official Behavior, in violation

of Section 838.016, Florida Statutes, a

Third Degree Felony; and Felony; and False

Official Statement, in violation of Section

837.06, Florida Statutes, a Second Degree

Misdemeanor.

3. On July 29, 1999, Michael L. Cone

entered into a "Plea Agreement" with the

State of Florida, by and through the Office

of the Statewide Prosecutor, to resolve the

charges pending against him in Case No.

99-13256. As part of this "Plea Agreement,"

which was adopted and incorporated by

reference in Michael L. Cone's "Judgement"

entered on July 29, 1999, and adjudicated

him guilty, Michael L. Cone agreed that for

a period of four (4) years from the date of

the agreement, he would not, nor would any

company or corporation under his control or

direction, work nor contract with, nor seek

to contract, nor act as a material supplier,

subcontractor or consultant, on any Florida

Department of Transportation contract or

project, excluding two projects under

contract at the time of execution of the

agreement, so long as those contracts were

completed within 15 months.

4. Michael L. Cone and Cone Constructors,

Inc. ( CCI) entered into a separate

"Settlement Agreement" on July 29, 1999,

with the State of Florida, Department of

Legal Affairs, Office of the Statewide

Prosecutor and the Florida department of

Transportation. Under the terms of that

agreement Michael L. Cone and CCI agreed not

to contract or seek to contract or act as a

material supplier, subcontractor or

consultant with the Florida Department of

Transportation or the State of Florida for a

period of four (4) years from the date of

the agreement.

5. Michael L. Cone neither admits nor

denies the underlying charges upon which the

action is based.

6. Section 287.132, Florida Statutes,

provides:

(2 ) The opportunity to bid on public

entity contracts or to supply goods and

services to public entities or to otherwise

transact business with public entities is a

privilege, not a right.

(3 ) In order to preserve the integrity of

the public contracting and purchasing

process, the privilege or transacting

business with public entities should be

denied to persons involved in certain

crimes.

(4 ) Persons involved in certain crimes

should be denied the privilege of

transacting business with public entities

and the opportunity of obtaining economic

benefit through the transaction of business

of any kind with public entities.

7. Pursuant to the definitions and

procedures set forth in Section 287.133,

Florida Statutes, and based upon the facts

set forth in this "Stipulation for Entry of

Final Order," Michael L. Cone is subject to

placement on the Convicted Vendors List for

a period not to exceed one (1) year.

"STIPULATED DISPOSITION"

8. Michael L. Cone agrees that he shall be

placed upon the Convicted Vendors List as

defined by Section 287.133, Florida

Statutes. All restrictions set forth in

Section 287.133, Florida Statutes, for

persons or entities placed on the Convicted

Vendors List shall apply to Michael L. Cone

for a period beginning the date that a Final

Order is entered accepting this "Stipulation

of Entry of Final Order" and ending one

calendar year from that date. All

restrictions contained in Michael L. Cone's

July 29, 1999 "Plea Agreement" and Michael

L. Cone and CCI's July 29, 1999 "Settlement

Agreement" shall apply to Michael L. Cone

for period beginning the date that a Final

Order is entered accepting the "Stipulation

for Entry of Final Order" and ending on

July 30, 2003. Upon completion of the final

day Michael L. Cone is to be placed on the

Convicted Vendors List, his name shall be

removed from the list.

9. Michael L. Cone shall pay $2,630.48 to

the Department of Management Services by

cashiers' check or money order no later than

30 days from entry of the Final Order

accepting this "Stipulation for Entry of

Final Order".

10. It is the express intent of Michael L.

Cone and the Department of Management

Services that Michael L. Cone shall be

placed on the Convicted Vendors List for a

period of one (1) year beginning from entry

of a Final Order accepting this "Stipulation

for Entry of Final Order" and ending one

calendar year from that date and Michael L.

Cone shall be restricted from engaging in

any business transaction with any public

entity in the State of Florida during that

period. Further, where this "Stipulation

for Entry of Final Order," relevant

statutory provisions and the previously

executed agreements conflict, then the most

stringent terms and conditions of any of the

following shall apply : Section 287.133,

Florida Statutes; Michael L. Cone's "Plea

Agreement" dated July 29, 1999(a copy of

which is attached and incorporated by

reference); and Michael L. Cone and CCI's

"Settlement Agreement" dated July 29, 1999(a

copy attached and incorporated by

reference).

11. Michael L. Cone understands that this

proposed "Stipulation for Entry of Final

Order" is subject to the approval of the

Administrative Law Judge assigned to this

cause by the Division of Administrative

Hearings and the approval of the Secretary

of the Department of Management Services.

The terms of this "Stipulation for Entry of

Final Order" are made for the purpose of

settlement only. Neither the Department nor

the Administrative Law Judge is bound by its

terms should Michael L. Cone reject or fail

to execute this "Stipulation for Entry of

Final Order."

12. Upon entry of a Final Order accepting

this "Stipulation for Entry of Final Order"

as the proper disposition of this matter

Michael L. Cone waives further

administrative procedures in the matter and

waives all right to seek judicial review of

otherwise challenge or contest this

"Stipulation for Entry of Final Order" or

the "Final Order" entered by the Division of

Administrative Hearings adopting this

"Stipulation for Entry of Final Order."

13. Michael L. Cone agrees that any

violation of this "Stipulation for Entry of

Final Order" shall result in a placement on

the Convicted Vendor List for a period of

three (3) years from the date of Department

of Management Services' notification to him.

14. Upon entry of a Final Order accepting

this "Stipulation for Entry of Final Order"

as the proper disposition of this matter

Michael L. Cone agrees to bear his own

attorneys' fees and costs which may be

accrued from defense of this proceeding and

waives the right to seek any attorneys' fees

or cost from the Department in connection

with this proceeding.

15. Michael L. Cone is executing this

"Stipulation for Entry of Final Order" for

the purpose of entry of a final order by the

Division of Administrative Hearings. In

this matter; in furtherance of that purpose,

Michael L. Cone authorizes the

Administrative Law Judge to review and

examine all investigative materials

concerning them prior to or in conjunction

with consideration of this "Stipulation for

Entry of Final Order."

2. The parties' stipulated settlement agreement(with

attachments) constitutes an informal disposition of all issues

in this proceeding. Accordingly, the parties have waived their

right to a hearing pursuant to Section 120.57(j), Florida

Statutes. In light of the stipulated facts and the criteria set

forth in Section 287.133(3)(e) .a.-k, Florida Statutes, there are

no disputed issues of material fact between Petitioner,

Michael L. Cone, and Respondent, Department of Management

Services, which would require a formal hearing.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter pursuant to

Chapters 120 and 287, Florida Statutes.

4. Section 120.57(4), Florida Statutes, provides as

follows:

(4 ) INFORMAL DISPOSITION.- Unless precluded by law,

informal disposition may be made of any proceeding

by stipulation, agreed settlement, or consent order.

5. Section 287.133(3)(e )2.f., Florida Statutes, provides

as follows:

At any time after the filing of the

petition, informal disposition may be made

pursuant to s.120.57(4). In that event, the

administrative law judge shall enter a final

order adopting the stipulation, agreed

settlement, or consent order.

(Emphasis added.)

6. Here, the parties have informally disposed of all

issues by entering into an stipulated settlement(with

attachments) and the mandatory nature of the statutory language

underscored above requires entry of "a final order adopting the

stipulation, agreed settlement, or consent order."

7. Consistent with the mandate of Section

287.133(3)(e )2.f., Florida Statutes, it is hereby ORDERED:

That the Stipulated Settlement Agreement(with attachments)

of Petitioner, Michael L. Cone, and Respondent, Department of

Management Services, is adopted, and Petitioner, Michael L.

Cone, shall be placed on the convicted vendor list for one year

(365 days) as of the date of this Final Order and all terms,

restrictions, and conditions contained in the Stipulated

Settlement Agreement shall apply during that period.

DONE AND ORDERED this 9th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of August, 2001.

COPIES FURNISHED :

Michael Cone

5102 Longfellow Avenue

Tampa, Florida 33629

Julia Forrester, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Mallory Roberts, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Cynthia Henderson, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950