Scientific Games, Inc. v. Dittler Bros., Inc.

• Decision Date: 07 August 1991
• Docket Number: 91-2063,Nos. 91-2054,s. 91-2054
• Citation: 586 So.2d 1128
• Parties: 16 Fla. L. Weekly D2046 SCIENTIFIC GAMES, INC., Petitioner, v. DITTLER BROTHERS, INC., et al., Respondents. FLORIDA DEPARTMENT OF the LOTTERY, Petitioner, v. DITTLER BROTHERS, INC., Respondent.
• Court: Florida District Court of Appeals

Page 1128

586 So.2d 1128

16 Fla. L. Weekly D2046

SCIENTIFIC GAMES, INC., Petitioner, v. DITTLER BROTHERS, INC., et al., Respondents.

FLORIDA DEPARTMENT OF the LOTTERY, Petitioner, v. DITTLER BROTHERS, INC., Respondent.

Nos. 91-2054, 91-2063.

District Court of Appeal of Florida First District.

Aug. 7, 1991.

Rehearing Denied Sept. 16, 1991.

Robert I. Scanlan, Asst. Atty. Gen., Tallahassee, for petitioner Florida Dept. of Lottery.

Clifford A. Schulman of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, Miami, for petitioner Scientific Games, Inc.

Betty J. Steffens of McFarlain, Sternstein, Wiley & Cassedy, Tallahassee, for respondents.

PER CURIAM.

We have for our consideration petitions which seek review of a non-final order of a Hearing Officer of the Division of Administrative Hearings. For the reasons that follow, we grant relief in part and deny it in part.

In April, 1991, the Florida Department of the Lottery issued a request for proposals (RFP), asking for proposals for the printing of instant winner lottery tickets. Responses were received from four vendors including Scientific Games, Inc. and Dittler Brothers, Inc. The responses were evaluated by a committee of five persons which awarded the highest point score to Scientific Games. The proposal of Dittler Brothers was awarded the second highest score.

On Friday, May 17, 1991, at approximately 4:30 PM, a Notice of Intent to Negotiate a Contract with Scientific Games was posted on a bulletin board at the department's headquarters. Copies of the Notice were also sent to the responding parties by overnight delivery and received at approximately 10:30 AM on Monday, May 20. Dittler Brothers was uncertain as to the time of commencement of the 72 hour period for filing a protest under section 24.109(2)(a), Florida Statutes (Supp.1990) and made inquiry of the department. A written response was sent wherein the department advised Dittler Brothers that the time for filing a protest would expire on Thursday, May 23, at 10:30 AM. Dittler Brothers' protest was filed approximately one hour before that deadline.

The department referred the protest to the Division of Administrative Hearings where Scientific Games moved to dismiss, arguing that the time for filing a protest commenced with the posting of the notice and therefore the protest was untimely. After hearing evidence as described above, the motion to dismiss was denied without comment.

Scientific Games asks this court to review the Hearing Officer's disposition through a petition for review of non-final agency action or for a writ of prohibition. We find there is some uncertainty as to whether such an order may be reviewed by this court prior to final order. Compare Fiat Motors, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA 1978) (accepting jurisdiction to review a non-final agency order which determined that a complaint was properly and timely filed within the statutory parameters) with Mullin v. State, Department of Administration, Division of Administrative Hearings, 354 So.2d 1216 (Fla. 1st DCA), cert. denied, 359 So.2d 1217 (Fla.1978) (declining to review before plenary appeal an order denying a motion to dismiss on grounds of expiration of the statute of limitations.) Nevertheless, we find that even if we were to accept jurisdiction, in light of the correspondence from the department to Dittler Brothers and the express terms of section 24.109(2)(a), which provides that a protest must be filed "within 72 hours after receipt of notice of the decision ...," we do not find that Scientific Games has demonstrated that the Hearing Officer erroneously denied the motion to dismiss. Accordingly, insofar as Scientific Games' petition asks this court to quash the Hearing Officer's denial of its motion to dismiss, it is denied.

Both Scientific Games and the Department of the Lottery also petition this court for review of the Hearing Officer's order which granted Dittler Brothers' motion to compel certain discovery to which the petitioners objected. Our jurisdiction to review this order under section 120.68(1), Florida Statutes, is well-settled. Medivision, Inc. v. Department of Health and Rehabilitative Services, 488 So.2d 886 (Fla. 1st DCA 1986).

Dittler Brothers filed requests for production of documents which, in effect, sought discovery from the department and Scientific Games of all of the proposals and the agency's entire file on the matter, including an audio tape of the evaluation committee's consideration of the proposals. Petitioners complied in part but resisted discovery in other respects, relying on a number of theories for non-disclosure. Scientific Games contended that its proposal contains highly confidential information protected by statute and rule. It also relied on a section of the RFP itself which provides that the technical portions of the proposal are confidential and a written response from the agency which clarified that portion of the RFP.

The department also resisted discovery, asserting that certain information sought was confidential, proprietary, or trade secret information which is essential to the security and integrity of the lottery. The Hearing Officer heard argument of counsel and conducted an in camera inspection of the materials. He granted Dittler Brothers' motion to compel, but imposed certain protections relating to access to and copying of the materials and any later revelation of their contents.

After the motion to compel was granted and the likelihood of appellate review raised, the agency attempted to reach a compromise with the parties. It...