94-004048 Peace River Center For Personal Development, Inc. vs. Bureau Of Advocacy And Grants Status: Closed Recommended Order on Thursday, January 26, 1995.

Summary: Respondent exercised sound discretion in denying Petitioner's request for grant funding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEACE RIVER CENTER FOR PERSONAL )

DEVELOPMENT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-4048

)

DEPARTMENT OF LEGAL AFFAIRS, )

BUREAU OF ADVOCACY & GRANTS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, James E. Bradwell, held a formal hearing in this

case on September 28, 1994, in Bartow, Florida.

APPEARANCES

For Petitioner: Dennis Eshman, Esquire

Peace River Center for Personal

Development, Inc.

1745 Highway 17, South

Bartow, Florida 33830

For Respondent: M. Katherine Lannon, Esquire

Senior Assistant Attorney General

Chief, Administrative Law Section

PL-01, The Capitol

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Respondent, in exercising discretion to decline to renew the Victim

of Crimes Act (VOCA) funding request of the Petitioner during the 1994/95 fiscal

year, acted in an arbitrary and/or capricious manner.

PRELIMINARY STATEMENT

Petitioner was a recipient of VOCA funding for the 1993/94 fiscal year.

Petitioner applied for, but was denied, funding for the 1994/95 fiscal year.

Based on that denial, Petitioner requested a formal hearing to contest  t h a t

denial. Following that request, this matter was referred to the Division of

Administrative Hearings by Respondent for the assignment of a hearing officer to

conduct a formal hearing.

At the hearing, Petitioner presented the testimony of Melissa Songer,

Judith Flanagan, Donna Placenza, Donna Rininger, Deborah A. Burke, and Kelly

Butz. Respondent presented the testimony of Karen Weaver and Marcie Davis. The

parties stipulated to the late filed deposition of Shirley Hardey as hearing

testimony.

The parties filed proposed recommended orders on December 9, 1994 which

were considered in preparation of this recommended order. Respondent's proposed

findings of fact are substantially adopted. Proposed findings of fact which are

not incorporated herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while

testifying, and the entire record compiled herein, I hereby make the following

relevant:

FINDINGS OF FACT

1. Peace River Center for Personal Development (herein Petitioner) is a

community service center that offer services to clients who are victims of

crimes.

2. Petitioner has been awarded VOCA funds in the past by Respondent.

Pursuant to the contract with Respondent, Petitioner was advised that VOCA funds

were awarded specifically and that renewal was not automatic but would be

considered each funding year. The contract and the VOCA guidelines grant

Respondent the discretion to renew or not renew funding requests

3. By letter dated March 23, 1994, Respondent advised Petitioner that its

VOCA contract was expiring on June 30, 1994. Petitioner was also advised that

its contract may or may not be renewed for an additional year depending on the

outcome of a program evaluation and the availability of VOCA funds.

4. In the March 23, 1994 letter to Petitioner, Respondent advised

Petitioner that federal VOCA funding to Florida for the 1994/95 fiscal year had

been reduced and the reduction would be passed on to applicants.

5. The issuance of renewal funds for the 1994/95 VOCA contracts were based

on three criteria, (1) the grant renewal requests, goals and objectives, and

budget; (2) an evaluation of the VOCA program's effectiveness in serving victims

of crime; and (3) the availability of funds.

6. For fiscal year 1993/94, Petitioner received $55,000 in VOCA funds.

Those funds were to assist with the provision of services to adult sexual abuse

and domestic violence victims.

7. Petitioner submitted documentation in support of its initial VOCA

funding request and indicated that part of its funding would be used to hire a

coordinator therapist and a child care advocate. However, during the course of

the 1993/94 fiscal year, Petitioner did not fill those positions until the

second half of the year based on delays that it experienced in building a new

facility. As a result, a portion of the VOCA funds lapsed. Because of those

delays, a contract amendment was executed by the parties allowing the lapsed

money, which would have been spent for those professional positions, to be used

for furniture and supplies. Based on the modification, revised goals were

established. Thus, Petitioner set out to serve only 20 children in the child

care unit instead of the 60 as noted in the funding request and to provide only

300 hours of child care to children of domestic violence victims instead of the

1000 hours as requested. The modification was an effort to maximize funding in

the interest of the community for the 1993/94 fiscal year.

8. Respondent established a procedure for evaluating all applicants for

VOCA funding grants in 1994/95. This procedure included forwarding a packet of

information which was sent to all applicants. The packet included a cover

letter, instructions, a check list and various forms to be completed.

9. As noted, the federal VOCA grant to Respondent was reduced by 5 percent

for fiscal year 1994/95. Although Respondent's staff initially recommended to

the Attorney General that all VOCA grants be reduced by 5 percent, Respondent

reconsidered and decided that it would be more appropriate to evaluate each

program to determine which programs were more efficient and were providing the

most needed services to the communities. Respondent also reviewed those

programs which provided services that were offered by VOCA monies and were

achieving the goals and objectives that were originally stated in the funding

request. The Respondent implemented this procedure and in doing so, set up a

competitive process to rate each of the 48 existing VOCA grantees.

10. To be awarded VOCA funds, the applicants were initially requested to

submit renewal applications. Secondly, Respondent solicited comments from

community representatives concerning the performance of the grantee over the

preceding fiscal year and evaluated those comments. Next, Respondent reviewed

and analyzed the funding by the internal monitoring system that was in place at

the time. Utilizing this procedure, the grant managers within Respondent's

office reviewed their internal reviews, evaluated the monitoring report of the

agency that they had prepared including monthly reimbursement requests and any

communication or correspondence that had been entered into between the agencies.

11. Respondent's input from the community centered around the performance

of the grantees. In measuring their performance, Respondent attempted to get at

least three certifiers from persons in the community who worked with, or were

familiar with, the grantees. Respondent selected three of the certifiers that

had originally certified the grantee program prior to the award of the first

VOCA grant and sent forms to those entities. In addition, Respondent attempted

to get two additional certifiers, the state attorney's office or local law

enforcement, to participate in the certification process. This second group of

certifiers was contacted by telephone. In Petitioner's case, only three

certifications were submitted. Respondent reviewed those written certifications

and rated Petitioner.

12. One certifier observed that Petitioner had insufficient staffing, that

waiting periods were too long for victims to get in and that rape crisis

volunteers needed to be matched in age with rape victims. That certifier did

not intend for her review to impact adversely upon Petitioner's VOCA grant

request although she stood by the representations made in the certification.

The next certifier related that Petitioner displayed a program weakness in that

victims of domestic violence were required to attend the same domestic violence

treatment program class as the abuser or pay an additional $200 to attend a

different treatment program. She also noted that certain child care victims

were not assisted during court appearances, which was an area that Petitioner

specifically noted that it would provide services under the VOCA grant.

13. The next certifier related that Petitioner had a number of weaknesses

in its program, albeit unspecific, and that she was familiar with the quality of

services that Petitioner rendered with VOCA funds since February of 1994.

14. Upon receiving all of the certification information, Respondent

compiled a report and ranked each applicant by assigning a numerical value to

each applicant. The ranking was based on the totality of the responses received

by Respondent.

15. All of the applicants were rated and based on those ratings, their

VOCA grant applications were either renewed or not renewed. Of the 48

applicants evaluated, 45 were funded in whole or in part based on their

numerical ranking and 3 requests were not funded, including Petitioner's

request. Of all the applicants, Petitioner was ranked 48th or last.

16. Specifically, Petitioner was advised of the non-renewal by Respondent

in a June 10, 1994 letter that:

This decision was based on an internal

performance evaluation and upon performance

evaluations of your program by agencies and

organizations within your community.

A major factor in the non-renewal determination

was the administration of the VOCA funds, resul-

ting in hiring delays, causing a de-obligation

of funds and unnecessary waiting lists for crime

victims. The effectiveness of services to your

community was also a major factor in not offering

your agency a renewal contract.

17. Finally, Respondent's chief of advocacy and grants management of the

Attorney General's office, Marcie Davis, was formerly employed in a position

where she answered a toll-free information line to assist victims of crimes.

Ms. Davis recalled an attempt, by her, to get counselling for a child who was a

victim of domestic violence in Petitioner's service area (his mother was

murdered by her boyfriend) during the 1993/94 fiscal year. Ms. Davis was unable

to get services from Petitioner for that child due to its waiting list - a

period of eight to thirteen weeks.

18. Respondent's denial of Petitioner's application for VOCA funds was a

non-renewal and was not a termination for cause.

19. Respondent utilized sound discretion in awarding the VOCA funding to

the various grantees. There was no evidence that the ranking of any grantee,

including Petitioner, was either arbitrary or capricious.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding pursuant to Section

120.57(1), Florida Statutes.

21. The parties were duly noticed pursuant to Chapter 120, Florida

Statutes.

22. Petitioner has the burden of proof in this proceeding as it is the

party asserting the affirmative of the issue. See, Florida Department of

Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

23. The decision to award or not to award VOCA grant funds is a

discretionary one to be made by Respondent, as evidenced by the contract and the

VOCA grants program final program guidelines. To overturn the Respondent's

exercise of discretion, Petitioner must establish that the Respondent acted in a

manner that was either arbitrary and/or capricious. See, Okaloosa Asphalt

Enterprises v. Okaloosa County Gas District, 524 So.2d 1095 (Fla. 1st DCA 1988).

24. A capricious action is one that is taken without thought or reason or

irrationally. An arbitrary decision is one not supported by facts, logics or is

despotic. Agrico Chemical Co. v. State Department of Environmental Regulation,

365 So.2d 759 (Fla. 1st DCA 1978). See also, Dravo Basic Materials Company,

Inc. v. State Department of Transportation, 602 So.2d 632 (Fla. 2d DCA 1992).

25. Petitioner failed to establish that Respondent's denial of its request

for VOCA grant fundings for the 1994/95 fiscal year, was based on arbitrary,

capricious or irrational actions. There was substantial evidence that

Respondent relied on a specific and evaluative process which was supported

factually and logically. Faced with decreased funding, Respondent made a

discretionary judgement that some programs would get less than they requested

and some would receive no funding. Petitioner was one of those programs that

received nothing based on the evaluation of the program and services which it

provided to the community that it served.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that:

Respondent enter a final order denying Petitioner's request to reverse the

discretionary decision made to deny Petitioner's request for VOCA funding for

the 1994/95 fiscal year.

DONE AND ENTERED this 26th day of January, 1995, in Tallahassee, Florida.

___________________________________

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER

Rulings on Petitioner's proposed findings of fact:

Paragraph 4, rejected, not probative, paragraph 5 rejected, contrary to the

greater weight of evidence, paragraphs 11-13, Recommended Order.

Paragraph 7, rejected, speculative and not probative.

Paragraph 9, rejected, contrary to the greater weight of evidence,

Paragraphs 9 and 10, rejected contrary to the greater weight of evidence,

paragraphs 12 and 17, Recommended Order.

Rulings on Respondent's proposed findings of fact

Paragraph 11, rejected, irrelevant and not probative.

COPIES FURNISHED:

Dennis Eshman, Esquire

1745 Highway 17 South

Bartow, Florida 33830

M. Catherine Lannon, Esquire

Gregory A. Chaires, Esquire

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

Honorable Robert Butterworth

Attorney General

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.