06-002291BID Mae Volen Senior Center, Inc. vs. Area Agency On Aging Palm Beach/Treasure Coast, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, June 18, 2008.

Summary: An Area Agency on Aging is not an "agency" as defined in Section 120.52(1) and not subject to Chapter 120. DOAH has no jurisdiction under Section 120.65(4) to conduct an administrative hearing; petition for a hearing is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAE VOLEN SENIOR CENTER, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 2291 BID

)

AREA AGENCY ON AGING PALM )

BEACH/TREASURE COAST, INC., )

)

Respondent. )

)

and )

)

RUTH RALES JEWISH FAMILY )

SERVICES OF SOUTH PALM BEACH )

COUNTY, )

)

Intervenor, )

)

and )

)

DEPARTMENT OF ELDER AFFAIRS, )

)

Intervenor. )

_________________________________)

FINAL ORDER OF DISMISSAL

FOR LACK OF SUBJECT MATTER JURISDICTION

Purs uant to notice, a motion hearing was held in this case

on July 13, 2006, with the parties attending by telephone,

before Patricia M. Hart, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petition er: Donna E. Blanton, Esquire

Elizabeth McArthur, Esquire

Radey, Thomas, Yon & Clark, P.A.

301 South Bronough Street

Suite 200

Tallahassee, Flori da 32301

For Respondent: Cynthia S. Tunnicliff, Esquire

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Se cond Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

and James L. Watt, Esquire

Caldwell & Pacetti

324 Royal Palm Way, Suite 300

Palm Beach, Florida 33480 - 4352

For Intervenor: Matthew Triggs, Esquire

Ruth Rales Gary W. Kovacs, Esquire

Jewish Family Proskauer Rose LLP

Service of South 2255 Glades Road

Palm Beach Suite 340W

County, Inc. Boca Raton, Florida 33431

For Intervenor: Robert N. Clarke, Esquire

Department of Jason B. Gonzalez, Esquire

Elder Affairs Ausley and McMullen

227 South Calhoun Street

P ost Office Box 391

Tallahassee, Florida 32302

and Barbara M. Crosier, General Counsel

Department of Elder Affairs

4040 Esplanade Way, Suite 152

Tall ahassee, Florida 32399 - 7000

DISCUSSION

This matter is submitted for decision on the State of

Florida, Department of Elder Affairs' ("Department") Motion to

Dismiss for Lack of Jurisdiction, filed July 6, 2006;

Respondent's Motion to Relinquish Jurisdict ion Due to Lack of

Subject Matter Jurisdiction filed by Area Agency on Aging Palm

Beach/Treasure Coast, Inc. (AAA Palm Beach/Treasure Coast), on

July 6, 2006; and Intervenor Ruth Rales Jewish Family Service of

South Palm Beach County, Inc. ("Ruth Rales") J oinder in Motion

to Relinquish Jurisdiction Due to Lack of Subject Matter

Jurisdiction, filed July 10, 2006; the response in opposition to

the motions to dismiss and to relinquish jurisdiction filed by

Mae Volen Senior Center, Inc. ("Mae Volen") on July 12 , 2006;

the reply to Mae Volen's response filed by the Department on

July 12, 2006; and a response to the reply filed on July 12,

2006, by the Department, filed by Mae Volen on July 14, 2006.

The issue presented by the Department in its motion is whether

the Division of Administrative Hearings has subject matter

jurisdiction to hear a bid protest submitted by the AAA Palm

Beach/Treasure Coast.

Simply stated, the instant case involves a challenge by Mae

Volen to the AAA Palm Beach/Treasure Coast's notice of intent to

award to Ruth Rales a contract for designation as Lead Agency

and Case Management /Case Aide pursuant to a Request for

Proposals ("RFP") issued on February 17, 2006, by the AAA Palm

Beach/Treasure Coast. Mae Volen, which had submitted a proposa l

in response to the RFP, filed a Petition for Administrative

Hearing with the AAA Palm Beach/Treasure Coast "pursuant to

sections 120.569, 120.57(1) and (3), Florida Statutes, and rules

28 - 106.201(2) and 28 - 110.004, Florida Administrative Code." The

AAA Palm Beach/Treasure Coast transmitted the petition to the

Division of Administrative Hearings with a request that an

administrative law judge be assigned "to conduct the proceeding

in accordance with Sections 120.57(1) and 120.57(3), Florida

Statutes. Bot h Mae Volen and AAA Palm Beach/Treasure Coast

acted based on the following provision found in Attachment 12 of

the RFP, which provided in pertinent part:

If the protest is not resolved by mutual

agreement within seven days . . . of receipt

of the formal wr itten protest, and if there

is a disputed issue of material fact, the

formal written protest shall be referred to

the Division of Administrative Hearings for

further proceedings.

Upon receipt by the Division of Administrative Hearings,

the matter was assi gned to the undersigned, who conducted a

telephone conference with counsel for Mae Volen and the AAA Palm

Beach/Treasure Coast to arrange a date for the hearing. Counsel

for the Department joined the telephone conference and stated

that the Department int ended to file a motion to dismiss this

administrative proceeding on the grounds that the Division of

Administrative Hearings lacked subject matter jurisdiction to

adjudicate the bid protest. The Department's Unopposed Petition

to Intervene, filed for the limited purpose of challenging the

subject matter jurisdiction of the Division of Administrative

Hearings, was granted in an order entered July 19, 2006. Oral

argument was heard from all parties during the telephone hearing

on July 13, 2006.

Having consid ered all of the written pleadings submitted

with respect to the subject matter jurisdiction of the Division

of Administrative Hearings to conduct an administrative hearing

in this case and the arguments of counsel during the hearing,

the Department's Motio n to Dismiss for Lack of Subject Matter

Jurisdiction is granted because AAA Palm Beach/Treasure Coast is

not an "agency" for purposes of the Administrative Procedures

Act, Chapter 120, Florida Statutes. The jurisdiction of

administrative law judges employ ed by the Division of

Administrative Hearings is limited to conducting "hearings

required by this chapter or other law" and conducting hearings

"on a contract basis to any governmental entity . . . not

covered by this section." § 120.65(4) and (7), Fla. S tat. 1

The AAA Palm Beach/Treasure Coast is a private entity that

is designated by, and is under contract with, the Department to

provide services to the elderly pursuant to Section 20.41,

Florida Statutes, which provides in pertinent part:

(5) The departm ent shall be the state unit

on aging as defined in the federal Older

Americans Act of 1965, as amended, and shall

exercise all responsibilities pursuant to

that act.

(6) In accordance with the federal Older

Americans Act of 1965, as amended, the

departmen t shall designate and contract with

area agencies on aging in each of the

department's planning and service areas.

Area agencies on aging shall ensure a

coordinated and integrated provision of

long - term care services to the elderly and

shall ensure the pr ovision of prevention and

early intervention services. The department

shall have overall responsibility for

information system planning. The department

shall ensure, through the development of

equipment, software, data, and connectivity

standards, the ab ility to share and

integrate information collected and reported

by the area agencies in support of their

contracted obligations to the state.

(7) The department shall contract with the

governing body, hereafter referred to as the

"board," of an area agen cy on aging to

fulfill programmatic and funding

requirements. The board shall be

responsible for the overall direction of the

agency's programs and services and shall

ensure that the agency is administered in

accordance with the terms of its contract

with the department, legal requirements,

established agency policy, and effective

management principles. The board shall also

ensure the accountability of the agency to

the local communities included in the

planning and service area of the agency.

(8) The a rea agency on aging board shall,

in consultation with the secretary, appoint

a chief executive officer, hereafter

referred to as the "executive director," to

whom shall be delegated responsibility for

agency management and for implementation of

board polic y, and who shall be accountabl e

for the agency's performance.

(9) Area agencies on aging are subject to

chapter 119, relating to public records,

and, when considering any contracts

requiring the expenditure of funds, are

subject to ss. 286.011 - 286.01 2, r elating to

public meetings.

The statutory provisions under which the AAA Palm Beach/Treasure

Coast's RFP was issued are found in Sections 430.201 - .207,

Florida Statutes, the Community Care for the Elderly Act. An

"area agency on aging" is defined in Sect ion 430.203(1), Florida

Statutes, as

a public or non - profit private agency or

office designated by the department to

coordinate and administer the department's

programs and to provide, through contracting

agencies, services within a planning and

service ar ea. An area agency on aging

serves as both the advocate and the visible

focal point in its planning and service area

to foster the development of comprehensive

and coordinated service systems to serve

older individuals.

An "agency," for purposes of the A dministrative Procedures

Act, is defined in Section 120.52(1), Florida Statutes, in

pertinent part, as follows:

(1) "Agency" means:

(a) The Governor in the exercise of all

executive powers other than those derived

from the constitution.

(b) Each:

1. State officer and state department, and

each departmental unit described in

s. 20.04.

2. Authority, including a regional water

supply authority.

3. Board.

4. Commission, including the Commission on

Ethics and the Fish and Wildlife

Conservation Commi ssion when acting pursuant

to statutory authority derived from the

Legislature.

5. Regional planning agency.

6. Multicounty special district with a

majority of its governing board comprised of

nonelected persons.

7. Educational units.

8. Entity des cribed in chapters 163, 373,

380, and 582 and s. 186.504.

(c) Each other unit of government in the

state, including counties and

municipalities, to the extent they are

expressly made subject to this act by

general or special law or existing judicial

deci sions.

The AAA Palm Beach/Treasure Coast does not fall within any

of the categories set forth in Section 120.52(1)(a) or (b),

Florida Statutes. Nothing in Section 20.41, Florida Statutes,

or in Section 430.203, Florida Statutes, expressly makes the

AAA P alm Beach/Treasure Coast subject to Chapter 120, Florida

Statutes, and Mae Volen did not cite any judicial decision in

which the AAA Palm Beach/Treasure Coast was expressly made

subject to Chapter 120, Florida Statutes. In addition, in

Section 20.41(9), F lorida Statutes, the Florida Legislature

expressly made area agencies on aging subject to the Florida

Public Records Act, Chapter 119, Florida Statutes, and to the

public - meeting requirements of Sections 286.011 through .012,

Florida Statutes, " when [an ar ea agency on aging is ] considering

any contracts requiring the expenditure of funds ." Had the

Legislature wanted to make area agencies on aging subject to the

public procurement laws in Chapter 287, Florida, or to the

procedures set forth in Chapter 120, Florida Statutes, it could

have expressly done so. Finally, the AAA Palm Beach/Treasure

Coast cannot contract with the Division of Administrative

Hearings to assign administrative law judges to conduct hearings

to resolve protests involving its requests f or proposals because

it is not a governmental entity, nor can it establish a

procurement procedure in which bid protests involving disputed

issues of material fact can be referred to the Division of

Administrative Hearings.

CONCLUSION

Based on the foregoi ng, it is ORDERED that the Petition for

Administrative Hearing is dismissed because the Division of

Administrative Hearings does not have subject matter

jurisdiction over bid protests arising out of the RFP issued on

February 16, 2006, by the AAA Palm Beac h/Treasure Coast.

DONE AND ORDERED this 21st day of July, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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 July, 200 6 .

ENDNOTE

1 / All references to the Florida Statutes herein are to the 2005

edition unl ess otherwise indicated.

COPIES FURNISHED:

James L. Watt, Esquire

Caldwell & Pacetti

324 Royal Palm Way, Suite 300

Palm Beach, Florida 33480 - 4352

Barbara Crosier, General Counsel

Department of Elder Affairs

4040 Esplanade Way, Suite 152

Tallahassee, Florida 32399 - 7000

Matthew Triggs, Esquire

Proskauer Rose LLP

2255 Glades Road, Suite 340W

Boca Raton, Florida 33431

Brian A. Newman, Esquire

Pennington, Moore, Wi lkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

Robert N. Clarke, Jr., Esquire

Ausley and McMullen

227 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32302

Donna E. Blanton, Esquire

Radey, Thomas, Yon & Clark, P.A.

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301

Carole Green, Secretary

Department of Elder Affairs

4040 Esplanade Way, Suite 152

Tallahassee, Florida 32399 - 7000

NOTICE OF RIGHT TO J UDICIAL 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 governed 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 District Court of

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

t he Appellate District where the party resides. The notice of

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

be reviewed.