17-005562CVL Tracy J. Hoffman vs. Department Of Management Services, Division Of State Purchasing Status: Closed DOAH Final Order on Monday, January 22, 2018.

Summary: Petitioner failed to meet his burden of proving that it is not in the public interest to place him on the convicted vendor list.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACY J. HOFFMAN,

Petitioner,

vs. Case No. 17 - 5562CVL

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

PURCHASING,

Respondent.

_______________________________/

FINAL ORDER

P ursuant to n otice, a formal hearing was held in this case

before W. David Watkins, a duly designated Administrative Law

Judge of the Division of Administrative Hearings, on November 8,

2017, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Tracy J. Ho ffman, pro se

Inmate No. K90666

South Unit

11064 N orthwest Dempsey Barron Road

Bristol, Florida 32321 - 0711

For Respondent: Timothy L. Newhall, Esquire

Matthew J. Knoll, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issues to be determined in this case are whether

Petitioner committed a public entity crime as that term is

defined in s ection 287.133, Florida Statutes (2017) ; and, if so ,

whether it is in the public interest to place Petitioner's name

on the convicted vendor list maintained by the Department of

Management Services (DMS).

PRELIMINARY STATEMENT

By letter dated September 8, 2017, DMS notified Petitioner,

Tracy J. Hoffman, o f its intent to place him on the convicted

vendor list pursuant to section 287.133. The basis for the

DepartmentÓs determination, as alleged in its notification, was

that Petitioner had been convicted of a public entity crime.

On October 4, 2017, Petition er timely filed a Request for

Administrative Hearing (Petition) with DMS. In his Petition,

Petitioner disputed whether it is in the public interest to

place him on the convicted vendor list. On October 9, 2017, the

matter was referred to the Division of Administrative Hearings

(DOAH), and on October 24, 2017, a Notice of Hearing scheduling

the final hearing for November 8, 2017, at 10:00 a.m. in

Tallahassee, was entered.

On November 7, 2017, Respondent filed RespondentÓs Pre -

h earing Stipulation. However, there is no indication on the

face of the document that Petitioner was a participant in the

preparation of the stipulation. Accordingly, none of the

Ðadmitted facts requiring no proof at hearingÑ are binding on

Petitioner, and have not independently form ed the basis of any

of the Findings of Fact contained herein.

The final hearing was convened as noticed. At hearing,

Petitioner testified on his own behalf (telephonically) and did

not offer any exhibits into evidence. Respondent presented the

testimony of Lori Van Riper, s enior i nvestigations s upervisor

for the Florida Department of Transportation (FDOT). DMS

offered RespondentÓs Exhibits 1 through 5, which were received

into evidence subject to written objection by Petitioner.

However, Petitioner did not subsequently submit any written

objections to the exhibits.

At the conclusion of the hearing, the parties agreed to

file their proposed orders within 10 days of the date of filing

of the official transcript at DOAH.

A one - volume Transcript of the fi nal hearing was filed on

November 28, 2017. Thereafter, DMS timely filed a Proposed

Final Order (PFO), while Petitioner has not filed a PFO as of

the date of this Final Order.

Unless otherwise noted, all statutory references are to the

2017 version of the Florida Statutes.

FINDING S OF FACT

1 . Petitioner is currently an inmate at Liberty

Correctional Institution, in Bristol, Florida. PetitionerÓs

presumptive release date, including gain time, is February 12,

2020.

2 . On June 7, 2016, Petitioner and James Lee were charged

by a seven - count criminal information by the State Attorney for

the Nineteenth Judicial Circuit in St. Lucie County, Florida.

Two of the seven counts were against Petitioner and arose out of

the contract between the PetitionerÓs company, Gator Signage and

Striping LLC (Gator), and FDOT.

3 . Count One of the information charged Petitioner with

second degree grand theft pursuant to a scheme or course of

conduct, and provided in relevant part the following:

On or Between June 12, 2012, and Oc tober 4,

acey Joseph Hoffman did unlawfully

and knowingly engage in a systematic,

ongoing course of conduct to obtain or use

or endeavor to obtain or to use the property

of another, to - wit, the property of the

Florida Department of Transportation, a s

owner or custodian, of the value of $20,000

or more, but less than $100,000, with intent

to either permanently or temporarily deprive

the true owner of a right to the property or

benefit therefrom or to appropriate the

property to use of the taker or to the use

of any person not entitled thereto, in

violation of Florida Statute 812.014;

4 . Count One related to co ntract E4M30 for project

number 23041085201 , which consisted of roadway signing and

pavement marking throughout Martin, St. Lucie, and Indian R iver

counties, and to activities which allegedly occurred between

June 12, 2012, and October 4, 2013.

5 . Specifically , PetitionerÓs conduct cited as the offense

was the submission of false invoices to FDOT, for materials that

were never installed during the course of the contract in the

amount of $51,812.13, of which $47,612.13 was paid to

Petitioner.

6 . Lori Van Riper, an i nvestigations s upervisor and

a ccreditation m anager for the FDOT Office of Inspector General,

testified on behalf of DMS. Ms. Van Ri per testified that

Petitioner did not cooperate with the criminal investigation,

and denied responsibility for any criminal activity.

7 . On July 5, 2016, Petitioner filed a Felony Plea Form

and entered a plea of no contest to second degree grand theft.

P etitioner was adjudicated guilty, and sentenced to be

imprisoned for a term of 48 months, followed by a period of

11 yearsÓ probation.

8 . Petitioner did not deny that he was convicted of second

degree grand theft, and that fact is unrebutted in this recor d.

However, Petitioner stated that he plans to file an action

against his criminal attorney for ineffective assistance

of counsel.

9 . It is undisputed that second degree grand theft

pursuant to a scheme or course of conduct, under section

814.014, Florid a Statutes, in the context of doing business with

a state agency, constitutes a Ðpublic entity crimeÑ as defined

by section 2 87.133(1)(g) .

10 . Of the $47,612.13 fraudulently paid to Petitioner,

only $5,000 has been returned.

11 . Gator is a single member LLC, with Petitioner as its

sole m anager. No evidence was presented that anyone else

associated with Gator was involved in the offense.

12 . At the time the crime was committed , Petitioner was

the only person on the bank account where the deposits were

m ade, and was listed as sole owner of Gator. No evidence was

presented that anyone other than Petitioner received any

proceeds from the theft.

13 . On or about December 13, 2012, Petitioner submitted a

$12,000 invoice, while at the time there was no outsta nding work

order to be paid. According to Ms. Van Riper, this was Ðone of

the more egregious payments that we paid for not getting the

work performed.Ñ

14 . The final invoice submitted by Petitioner was for

$4,200 for maintenance of traffic, even though m aintenance of

traffic was already included in the work orders and cannot be

billed separately.

15 . James Lee (Lee) was the FDOT s pecial p rojects

c oordinator tasked with inspecting the work performed by Gator

and processing the pay requests.

16 . Petitione r admitted to manipulating invoices.

However, Petitioner stated that Lee Ðdoes not know what

(Petitioner) is doingÑ and that Ð because Lee is getting ready to

retire, he does not care.Ñ

17 . The original Florida Department of Law Enforcement

(FDLE) investi gation did not make note of any demonstration of

good citizenship by Petitioner. However, at he aring Petitioner

testified that:

- He has been installing traffic control

signs since 2005 as a subcontractor;

- He pays taxes on the 10 - acre ranch he owns;

- H e volunteers at the schools his children

attend and is on the PTA;

- He was Homecoming King at his high school;

- He has no prior criminal record;

- He has been a great father to his children;

- He regrets pleading no contest to the fraud

charge, and maint ains that he had

ineffective assistance of counsel.

18 . A person who is placed on the convicted vendor list is

precluded from transacting business with any public entity for a

period of 36 months following the date of being placed on the

list. § 287.133 (2)(a), Fla. Stat.

CONCLUSIONS OF LAW

19 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat. (2017).

20 . In this instance, DOAH has final order authority for

placement on the con victed vendor list pursuant to section

287.133(3)(e)1.e.

21 . Findings of F act shall be based upon a preponderance

of the evidence, except in penal or licensure disciplinary

proceedings , or except as otherwise provided by statute, and

shall be based exclus ively on the evidence of record and on

matters officially recognized. § 120.57(1)(j), Fla. Stat.

22 . Respondent is charged by the L egislature with the duty

to manage the convicted vendor list, pursuant to section

287.133.

23 . S ection 287.133(1) defines a public entity crime, and

provides, in pertinent part, that:

(g) ÐPublic entity crimeÑ means a violation

of any state or federal law by a person with

respect to and directly related to the

transaction of business with any public

entity or with an agency or political

subdivision of any other state or with the

United States, including, but not limited

to, any bid, proposal, reply, or contract

for goods or services, any lease for real

property, or any contract for the

construction or repair of a public build ing

or public work, involving antitrust, fraud,

theft, bribery, collusion, racketeering,

conspiracy, or material misrepresentation.

24 . PetitionerÓs conviction of second degree theft was

directly related to the transaction of business between

Petitioner and FDOT, and is a public entity crime.

25 . Section 287.133 establishes the burden on the

Department to prove that it is in the public interest to place a

person on the convicted vendor list , and section 28 7 .133(3)(e)

provides, in pertinent part, that:

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 whom it has given notice under

this section to be placed on the convicted

vendor list. Proof of a conviction of the

perso n or that one is an affiliate of such

person shall constitute a prima facie case

that it is in the public interest for the

person or affiliate to whom the department

has given notice to be put on the convicted

vendor list. Prompt payment of damages or

pos ting of a bond, cooperation with

investigation, and termination of the

employment or other relationship with the

employee or other natural person responsible

for the public entity crime shall create a

rebuttable presumption that it is not in the

public int erest to place a person or

affiliate on the convicted vendor list.

Status as an affiliate must be proven by

clear and convincing evidence. If the

administrative law judge determines that the

person was not convicted or is not an

affiliate of such person, that person or

affiliate shall not be placed on the

convicted vendor list.

26 . The Legislature has provided further guidance to the

undersigned as to whether Petitioner should be placed on the

convicted vendor list:

3. In determining whether it is in the

public interest to place a person or

affiliate on the convicted vendor list, the

administrative 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 pub lic

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

exercise 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 the 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).

j. The needs of public entities for

additional competition in the procurement of

goods and services in their re spective

markets.

k. Mitigation based upon any demonstration

of good citizenship by the person or

affiliate.

§ 281.133(3)(e)3 . , Fla. Stat.

27 . The Department has presented a prima facie case that

it is in the public interest to place Petitioner on the

convicted vendor list since, as found above, the Department

proved that Petitioner was convicted of one count of second

degree grand theft, pursuant to section 812.014(2)(b)1., in the

context of doing business with a state agency, and that such

conviction constitutes a "public entity crime" as defined by

section 287.133(1)(g).

28 . Petitioner is not entitled to a rebuttable presumption

that it is not in the public interest to place him on the

convicted vendor list. W hile Petitioner has repaid $5,000 to

FDO T, that amount represents only a small portion of the funds

he stole. Moreover, Petitioner did not cooperate with the FDLE

investigation. Finally, Petitioner cannot ÐunaffiliateÑ himself

from the person responsible for the public entity crime, since

he w as the perpetrator of the crime.

29 . Once the Department presents a prima facie case,

Petitioner is required to prove by the preponderance of the

evidence that it would not be in the public interest to be

placed on the convicted vendor list. S ection 287. 133(3)(e)

provides, in pertinent part, that:

5. Any person or affiliate who has been

notified by the department of its intent to

place his or her name on the convicted

vendor list may offer evidence on any

relevant issue. An affidavit alone shall

not con stitute competent substantial

evidence that the person has not been

convicted or is not an affiliate of a person

so convicted. Upon establishment of a prima

facie case that it is in the public interest

for the person or affiliate to whom the

department ha s given notice to be put on the

convicted vendor list, that person or

affiliate may prove by a preponderance of

the evidence that it would not be in the

public interest to put him or her on the

convicted vendor list, based upon evidence

addressing the fact ors in subparagraph 3.

30 . The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See G ross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000) (relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997),

( quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987) ) ) .

31 . Petitioner presented no evidence and offered no

t estimony related to any of the factors under section

287.133(4)(e)3., except for his own testimony on his

demonstrated good citizenship. Although Petitioner may have

paid his taxes, volunteered at his childrenÓs various schools,

and been a good father, th e totality of the evidence shows a

public interest in placing Petitioner on the convicted vendor

list. 1/ The grand theft committed by Petitioner was directly

related to his contract with FDOT, the stolen funds have not

been repaid, and Petitioner continue s to deny culpability for

his criminal actions.

32 . Petitioner failed to meet his burden of proving that

it is not in the public interest to place him on the convicted

vendor list.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it i s hereby

ORDERED that Petitioner, Tracy J. Hoffman, be placed on the

convicted vendor list pursuant to section 287.133, Florida

Statutes.

DONE AND ORDERED this 22nd day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January , 2018 .

ENDNOTE

1/ The undersigned notes that the majority of the time that

Petitioner will be on the convicted vendor list , he will be

incarcerated, and therefore unable to contract with publ ic

entities regardless.

COPIES FURNISHED:

Tracy J. Hoffman K90666

Liberty Correctional Institution, South Unit

11064 Northwest Dempsey Barron Road

Bristol, Florida 32321 - 0711

Timothy L. Newhall, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Matthew J. Knoll, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Roz Ingram

Director of State Purchasing and

Chief Procurement Of ficer

Division of State Purchasing

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 380

Tall ahassee, Florida 32399

(eServed)

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 governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the noti ce, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.