06-001506CVL William T. Cooper vs. Department Of Management Services Status: Closed DOAH Final Order on Wednesday, September 6, 2006.

Summary: The facts at hearing established that Petitioner was convicted of a public entity crime, but that it would not be in the public interest to place Petitioner`s name on the convicted vendor list.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. COOPER , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1506CVL

)

DEPARTMENT OF MANAGEMENT )

SERVICES , )

)

Respondent . )

)

FINAL ORDER

Pursuant t o notice, a final hearing in this case was held

on May 26, 2006, in Clearwater, Florida, before Lawrence P.

Stevenson, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: William T. Cooper, pr o se

2889 LaConcha Drive

Clearwater, Florida 33762 - 2201

For Respondent: Clifford A. Taylor, Esquire

Michael J. Barry, Esquire

Department of Management Services

4050 Esp lanade Way, Suite 160D

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner committed a

public entity crime as that term is defined in Section 287.133,

Florida Statutes (2000) , and, if so , whether it is in the public

interest to place Petitioner's name on the c onvicted vendor list

maintained by the Department of Management Services (the

"Department").

PRELIMINARY STATEMENT

By letter dated April 6, 2006, the Department notified

Petitioner, William T. Cooper, of its intent to place him on the

c onvicted vendor list. By letter dated April 17, 2006,

Petitioner timely contested the Department's proposed action.

On April 25, 2006, the matter was forwarded to the Division of

Administrative Hearin gs for assignment of an a dministrative l aw

j udge to conduct the hearing and prepare a f inal o rder.

At hearing, Petitioner testified on his own behalf and

offered Petitioner's Exhibits 1 through 6, which were admitted

into evidence. The Department presente d no testimony. The

Department's Exhibits 1 through 4 were admitted into evidence.

The Transcript of the proceeding was filed on June 9, 2006.

The Department filed its proposed final order on June 15, 2006.

On June 18, 2006, Petitioner filed a reques t for extension of

the time to file a proposed final order, citing the fact that he

was never notified of the filing of the Transcript, and became

aware of its filing only when served with the Department's

proposed final order. Petitioner's motion was gra nted by order

dated June 20, 2006. In compliance with the order granting

extension, Petitioner filed his proposed final order on July 3,

2006.

FINDINGS OF FACT

1. On March 22, 2000, Petitioner and White Construction

Company, Inc. , were charged by a twelv e - count criminal

indictment by the Fifteenth Statewide Grand Jury in Leon County,

Florida. Petitioner's indictment arose out of certain work he

performed after he was retained by attorneys representing White

Construction Company to do cost evaluation and preparation of

cost damages and to testify regarding those matters in

depositions and, if necessary, at trial.

2. On August 30, 2000, Petitioner entered a plea agreement

with the State of Florida in the Circuit Court of the Second

Judicial Circuit in Le on County, Florida. Pursuant to the terms

of the Plea Agreement, Petitioner entered a plea of guilty to

Counts Seven and Eight of the indictment and agreed to pay

restitution in the amount of $84,000 to the State of Florida, an

amount equaling the fees th at Petitioner was paid for his

services. In the Plea Agreement, the State agreed to nolle

prosse Counts One th r ough Six and Nine through Twelve against

Petitioner, and it also agreed that a formal adjudication of

guilt would be withheld. Finally, the Ple a Agreement provided,

that by entering a plea of guilty, Petitioner "admits the facts

of the charge."

3. Counts Seven and Eight of the indictment charged

Petitioner with two counts of Grand Theft, in the first degree,

and both counts provided in relevant part the following:

WHITE CONSTRUCTION CO., INC., by and through

its officers, representatives and employees,

and WILLIAM THOMAS COOPER, JR. as part of a

related transaction . . . committed GRAND

THEFT in the First Degree and did thereby

knowingly obtain o r use, or endeavor to

obtain or use U.S. Currency or other

property with an equivalent value, to - wit:

"delinquency days," with a value of $100,000

or more, the property of another, to - wit:

Florida Department of Transportation,

hereinafter: FDOT, with the intent to

temporarily or permanently deprive said

person of a right to the property, or a

benefit therefrom, or to appropriate the

property for the defendants' own use or to

the use of a person(s) not entitled thereto,

by filing false or fraudulent claim(s ) or

lawsuits for damages allegedly attributable

to the FDOT, and fraudulently opposing

delinquency status declared by FDOT, that

included false or fraudulent charges or

claims in that the claim(s) presented

contain(s), when all line items are

considered t ogether, damages and/or delays

for the same days and the same equipment

expenses on multiple occasions, and/or

fraudulent or false claims for equipment not

owned by WHITE CONSTRUCTION CO., INC. . . .

4. Count Seven related to Project N o. 36210 - 3439 on

In terstate 75 in Marion County, Florida, and to activities which

allegedly occurred between January 8, 1996, and January 30,

1998. Count Eight related to Project Nos. 36210 - 3440

and 36210 - 3441 on Interstate 75 in Marion County, Florida, and

relates to acti vities which allegedly occurred between April 15,

1996 , and January 30, 1998.

5. At the hearing in this matter, Petitioner testified

that he prepared damage and extension of time claims, based on

information that was provided to him by the attorneys for W hite

Construction Company. Petitioner testified that he did plead

guilty to Counts Seven and Eight, which involved instances of

billing the Florida Department of Transportation ("FDOT") for

the same equipment at different locations on the same day.

6. It is undisputed that first degree grand theft,

pursuant to S ubs ection 812.014(2)(a)1., Florida Statutes (2000),

in the context of doing business with a state agency,

constitutes a "public entity crime" as defined by S ubs ection

287.13 3(1)(g), Florida Statute s .

7. Petitioner did not notify the Department that he had

been convicted of a public entity crime within 30 days of his

conviction, as required by S ubs ection 287.133(3)(b), Florida

Statutes (2000). Petitioner testified that, at the time of the

plea, he was unaware of this statutory requirement. Petitioner

was represented by counsel in the criminal proceedings, and

testified that his lawyer did not mention Section 287.133,

Florida Statutes (2000) , in their discussions. Petitioner

further testified that the statewide prosecutor did not mention

the public entity crimes statute during plea negotiations.

Section 287.133, Florida Statutes (2000), is not mentioned in

the plea agreement.

8. Petitioner further contends that the fact that

adjudication was withh eld as a result of his plea agreement

establishes that he was never "convicted" of a public entity

crime. S ubs ection 287.133(1)(b), Florida Statutes (2000),

defines "conviction" as "a finding of guilt or a conviction of a

public entity crime, with or with out an adjudication of guilt ,

in any federal or state trial court of record relating to

charges brought by indictment or information after July 1, 1989,

as a result of a jury verdict, nonjury trial, or entry of a plea

of guilty or nolo contendere." ( e mpha sis added) Petitioner's

contention that he was not "convicted" is therefore without

merit.

9. However, Petitioner's belief that he had not been

convicted of a crime is credited. Even if he had been aware of

the requirements of Section 287.133, Florida S tatutes (2000),

Petitioner in all good faith would not have believed that he was

under any obligation to report his conviction.

10. In addition to requiring a person convicted of a

public entity crime to inform the Department within 30 days of

his convict ion, S ubs ection 287.133(3)( b ), Florida Statutes

(2000), requires any public entity which receives information

that a person has been convicted of a public entity crime to

transmit that information to the Department in writing within 10

days. S ubs ection 28 7.133(1)(f), Florida Statutes (2000),

defines "public entity" as "the State of Florida, any of its

departments or agencies, or any political subdivision."

11. The Office of Statewide Prosecution, which was the

signatory party to Petitioner's plea agreemen t, never informed

the Department of Petitioner's conviction.

12. In 2002, the Florida Engineers Management Corporation

on behalf of the Board of Professional Engineers issued a

complaint against Petitioner, seeking to discipline his license

as a profess ional engineer because of the acts alleged in the

indictment and the crimes to which Petitioner pled guilty.

Petitioner contested the proposed discipline and the matter went

to a full evidentiary hearing before a judge of the Division of

Administrative He arings. See Florida Engineers Management

Corporation v. Cooper , Case No. 02 - 3167PL (DOAH January 6,

2003). Neither the Florida Engineers Management Corporation nor

the Board of Professional Engineers informed the Department that

Petitioner had been convi cted of a public entity crime.

13. Petitioner presented documentary evidence indicating

that Michael K. Bowen, an FDOT employee, filed the complaint

that led to the investigation that culminated in Case

No. 02 - 3167PL. The complaint was filed with the Bo ard of

Professional Engineers on September 13, 2001, more than one year

after Petitioner's plea agreement was entered.

14. In the Recommended Order in Case No. 02 - 3167PL, the

Administrative Law Judge recommended that the charges against

Petitioner be dis missed, based on the conclusion that the

allegations did not directly relate to the practice of

engineering or the ability to practice engineering. The

A gency's Final Order, dated May 15, 2003, rejected the

Administrative Law Judge's conclusion and impose d a six - month

license suspension and a fine of $1,000.00 on Petitioner.

15. On June 16, 2003, Petitioner filed a notice of appeal

with the First District Court of Appeal. Petitioner and the

Board of Professional Engineers settled the appeal, and

Petiti oner voluntarily dismissed the case on October 23, 2003.

See Cooper v. State of Florida, Board of Professional Engineers ,

Case No. 1D03 - 2542.

16. Petitioner testified that he believed the dismissal of

his appeal would mark the end of his legal problems, some three

and one - half years after the filing of the indictment.

17. By letter to Steve Rumph, the Department's inspector

general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's

inspector general, reported the "criminal conviction of Luther

White, Jr. , William Thomas Cooper, Jr., and White Construction

Company, Inc. of Chiefland, Florida." The letter notes that

Petitioner entered his guilty plea to two counts of grand theft

and agreed to repay FDOT $84,000 in addition to permanent

debarment from doing business with or associating with any

business doing work with FDOT.

18. The letter correctly states that the plea agreement

was entered on August 30, 2000. It is notable that Mr. Bragg

concludes the letter by directing any questions to

"Investigation s Manager Michael K. Bowen." Michael K. Bowen was

the same FDOT employee who filed the complaint against

Petitioner with the Board of Professional Engineers on

September 13, 2001. Thus, the documents in this case establish

that FDOT knew of Petitioner's conviction no later than

September 13, 2001, 1 yet waited nearly four years before

notifying the Department of Petitioner's conviction.

19. At the hearing, no plausible explanation was offered

for FDOT's failure to comply with the requirements of

S ubs ec tion 287.133(3)(b), Florida Statutes (2000). In his

questioning of Petitioner, the Department's counsel implied that

it was merely standard practice for FDOT to wait until everyone

involved in the case had been convicted before notifying the

Department. Even if this implication is accepted, it does not

bring FDOT's actions within the terms of the statute. The

letter itself states that the individual Whites and White

Construction Company entered into a plea agreement on July 7,

2004, and that FDOT's inspe ctor general concluded all

investigation in the matter on December 23, 2004. Both those

dates are months before the March 15, 2005, letter from FDOT to

the Department. As noted above, S ubs ection 287.133(3)(b),

Florida Statutes (2000), required the agency to provide notice

of the convictions to the Department within 10 days of receiving

the information.

20. At the hearing, Petitioner testified that he believed

that FDOT intentionally dragged out these matters due to simple

vindictiveness. Given the fac ts noted above, Petitioner's

explanation is as plausible as any offered by the Department.

21. By letter dated March 21, 2005, Mr. Rumph attempted to

notify Petitioner that the Department had received information

that he had been found guilty of a public entity crime and that

the Department was commencing an investigation of the matter.

Because the letter was sent to an old address and apparently not

forwarded, Petitioner never received it.

22. For reasons again unexplained, another year passed

before th e Department made any further effort to contact

Petitioner. By certified letter dated April 6, 2006, the

Department notified Petitioner of its intent to place him on the

c onvicted vendor list. This letter was sent to the old address,

but was forwarded to Petitioner's current address.

23. Petitioner testified, both at this hearing and the

hearing in DOAH Case No. 02 - 3167PL, that he was retained to

provide cost evaluations and calculate cost damages based

entirely on information provided to him by engineer ing firms

hired by the attorneys for White Construction Company, as well

as information provided by White Construction Company and FDOT.

He made only brief visits to the job sites, was not allowed to

question the calculations performed by the engineers, a nd had no

knowledge that the information provided to him was untrue.

Petitioner did not submit the claims that later proved

fraudulent.

24. Petitioner testified that he pled guilty "to make the

trial go away and save me about $150,000 at that time." He did

not concede that he had actually committed any crime.

25. Petitioner's plea agreement provided that his total

aggregate sentence would be ten years of probation, with the

possibility of an early termination "upon proof by Defendant to

the c ourt's sa tisfaction that: (a) all restitution, fines, and

costs have been paid; (b) Defendant has satisfied in full all

other conditions of his probation; and (c) the interests of

justice are best served by early termination of probation. The

Defendant understand s that the State will not agree to an early

termination of probation any sooner than one - half of his

probationary period."

26. At the hearing, Petitioner testified that the order

terminating his probation was entered on February 10, 2006, more

than four y ears early. The early termination of probation leads

to the reasonable inference that Petitioner complied with all

the terms of his plea agreement, including the following:

Defendant agrees, when directed by the

State, to appear and testify truthfully and

fully and to provide information truthfully

and fully at all interviews, hearings,

depositions, and trials involving the above -

captioned case and any related

investigations. Defendant agrees to provide

all interview statements and testimony in

all deposi tions, hearings and trials

voluntarily. . . .

27. Petitioner has performed no work for White

Construction Company or any of its principals since March 2000.

Petitioner has performed no work for any state agency since

March 2000.

28. On November 8, 2000 , the Federal Highway

Administration suspended Petitioner from participating in

federally funded projects, based on the March 23, 2000 ,

indictment. The suspension was imposed for the duration of the

criminal proceedings. By letter dated April 11, 2005, t he

Federal Highway Administration notified Petitioner that his

suspension had been terminated, due to the conclusion of the

criminal proceedings.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subj ect matter of and the parties to this

action pursuant to Sections 120.569 and 120.57 , Florida Statutes

(2006) , and Subsection 287.133(3), Florida Statutes (2000).

30. Section 287.133, Florida Statutes (2000), sets forth a

process by which persons or their affiliates , who have been

convicted of public entity crimes , may be placed on a convicted

vendor list and thereby prohibited from participating in the

public contracting and purchasing processes of any state agency

or political subdivision of the state fo r a period of 36 months

from the date of placement.

31. S ubs ection 287.133(3)(e)4., Florida Statutes (2000),

provides, in relevant part:

4. In any proceeding under this section,

the department shall be required to prove

that it is in the public interest for the

person to who m it has given notice under

this section to be placed on the convicted

vendor list. Proof of a conviction of the

person or that one is an affiliate of such

person shall constitute a prima facie case

that it is in the public interest f or the

person or affiliate to whom the department

has given notice to be put on the convicted

vendor list. Prompt payment of damages or

posting of a bond, cooperation with

investigation, and termination of the

employment or other relationship with the

emp loyee or other natural person responsible

for the public entity crime shall create a

rebuttable presumption that it is not in the

public interest to place a person or

affiliate on the convicted vendor

list. . . .

32. As found above, the Department pro ved that Petitioner

was convicted of two counts of first degree grand theft,

pursuant to S ubs ection 812.014(2)(a)1., Florida Statutes (2000),

in the context of doing business with a state agency, and that

such conviction constitutes a "public entity crime" as defined

by S ubs ection 287.133(1)(g), Florida Statutes.

33. S ubs ection 287.133(3)(e)3., Florida Statutes (2000),

provides:

3. In determining whether it is in the

public interest to place a person or

affiliate on the convicted vendor list, the

administ rative law judge shall consider the

following factors:

a. Whether the person or affiliate

committed a public entity crime.

b. The nature and details of the public

entity crime.

c. The degree of culpability of the

person or affiliate proposed to be placed on

the convicted vendor list.

d. Prompt or voluntary payment of any

damages or penalty as a result of the

conviction.

e. Cooperation with state or federal

investigation or prosecution of any public

entity crime , provided that a good faith

exe rcise of any constitutional, statutory,

or other right during any portion of the

investigation or prosecution of any public

entity crime shall not be considered a lack

of cooperation.

f. Disassociation from any other persons

or affiliates convicted of t he public entity

crime.

g. Prior or future self - policing by the

person or affiliate to prevent public entity

crimes.

h. Reinstatement or clemency in any

jurisdiction in relation to the public

entity crime at issue in the proceeding.

i. Compliance by the person or affiliate

with the notification provisions of

paragraph (b) [the requirement that the

person notify the Department within 30 days

of his conviction].

j. The needs of public entities for

additional competition in the procurement of

goods and services in their respective

markets.

k. Mitigation based upon any

demonstration of good citizenship by the

person or affiliate. ( e mphasis added)

34. Though it is not listed among the public interest

factors to be considered in determining wheth er it is in the

public interest to place Petitioner on the convicted vendor

list, the extreme dilatoriness of FDOT in reporting Petitioner's

conviction demands discussion. Petitioner has argued that the

case should be dismissed because the FDOT (not to me ntion that

Office of the Statewide Prosecution and the Board of

Professional Engineers) did not comply with S ubs ection

287.133(3)(b), Florida Statutes (2000), which states, in

relevant part: "Any public entity which receives information

that a person has been convicted of a public entity crime shall

transmit that information to the department in writing within 10

days."

35. In Department of Business Regulation v. Hyman , 417

So. 2d 671, 673 (Fla. 1982), the court held that where an agency

has failed to c omply with a statutorily mandated time limit for

which that statute provides no express sanction, the "harmless

error" rule of S ubs ection 120.68(8), Florida Statutes (2000) ,

should be applied. See also Carter v. Department of

Professional Regulation , 633 So. 2d 3 (Fla. 1994). It is

inconceivable that a delay of more than five years in seeking to

place Petitioner on the convicted vendor list could be construed

as harmless error. If nothing else, had the FDOT promptly

reported Petitioner's conviction , and the Department timely

placed Petitioner on the convicted vendor list, Petitioner would

have long since comp l eted his 36 months on the list and now be

eligible to contract with public entities.

36. However, the undersigned hesitates to order dismissal

for FDOT's failure to report Petitioner's conviction because

FDOT is not a party to this proceeding, and the Department was

not responsible for FDOT's failure to comply with S ubs ection

287.133(3)(b), Florida Statutes (2000). The statute does not

grant the Dep artment discretion to ignore a reported conviction

on the ground of inexcusable delay or laches, or give the

Department authority to discipline a recalcitrant reporting

agency.

37. In any event, consideration of the mitigating factors

of S ubs ection 287.1 33(3)(e)3., Florida Statutes (2000),

emphasized above , leads to the conclusion that it would not be

in the public interest to place Petitioner on the convicted

vendor list. Petitioner credibly denied that he "committed a

public entity crime," though he pl ed guilty for reasons other

than actual guilt. At the very least, Petitioner's degree of

culpability was virtually nonexistent. He performed cost

evaluations and calculated cost damages based on information

provided to him by others that he was not requi red or even

allowed to test for accuracy, and he did not submit the

fraudulent claims to the state. The early termination of his

probation indicated that Petitioner cooperated fully with the

continuing investigation and prosecution of White Construction

C ompany and its principals. Petitioner disassociated himself

from White Construction Company and its principals, and has done

no business with any public entity since the time of the

indictment. Petitioner was reinstated to eligibility to

participate in f ederally funded programs by the Federal Highway

Administration in April 2005. Petitioner credibly explained his

failure to self - report through his testimony that he did not

believe he had been "convicted" by virtue of his plea agreement.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

ORDERED that Petitioner shall not be placed on the

convicted vendor list.

DONE AND ORDERED this 6th day of September , 2006 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 6th day of September , 2006 .

ENDNOTE

1/ The Administrative Law Judge in DOAH Case No. 02 - 3167PL

found that FDOT in fact approved the plea agreement in

August 2000. Florida Engineers Man agement Corporation v.

Cooper , Case No. 02 - 3167PL (DOAH January 6, 2003), Finding of

Fact 23.

COPIES FURNISHED :

William T. Cooper

2889 LaConcha Drive

Clearwater, Florida 33762 - 2201

Clifford A. Taylor, Esquire

Michael J. Barry, Esquire

Department of Ma nagement Services

4050 Esplanade Way, Suite 160D

Tallahassee, Florida 32399 - 0950

Tom Lewis, Jr., Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

Steven Ferst, General Counsel

Department of Management Serv ices

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are govern ed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the Dist rict Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.