The Issue The amount of reasonable attorney’s fees and costs to be awarded to Petitioner, Palafox, LLC (“Petitioner” or “Palafox”), and against Respondent, Carmen Diaz (“Respondent”), in the underlying administrative matter as a sanction pursuant to section 120.595, Florida Statutes.
Findings Of Fact Petitioner is a Florida limited liability company and was the applicant for the Permit challenged in Case No. 19-5831. Respondent is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision, and was the Petitioner in Case No. 19-5831. Petitioner was represented by the firm of Carlton Fields, P.A. (“the Firm”), in Case Nos. 19-5831 and 20-3014F. Petitioner’s counsel and paralegal with the Firm spent 392.4 hours litigating both the underlying substantive case and entitlement to attorney’s fees, for a total of $123,763.50 in fees, broken down as follows: Name Hours Rate Subtotal W. Douglas Hall 171.8 $382.50 $65,713.50 James E. Parker-Flynn 197.4 $270.00 $53,298.00 Christine Graves .3 $382.50 $ 114.75 Kimberly Pullen 22.9 $202.50 $ 4,637.25 The hourly rates shown above were discounted by approximately 10 percent of the standard rates charged by the Firm at the time this matter originated. Furthermore, over the course of representing Palafox in this matter, the Firm discounted a number of its bills as a courtesy because of the amount of time required to litigate the matter and to adjust for potential overlap among attorneys working on the case. Those courtesy adjustments totaled $7,437.45. Applying that discount to the total fees shown above, the total amount of attorney’s fees incurred by Palafox in litigating this matter is as follows: Total Unadjusted Attorney’s Fees $123,763.50 Less Courtesy Adjustments $ 7,437.45 Total Adjusted Attorney’s Fees $116,326.05 In addition to attorney’s fees, Palafox incurred the following taxable costs and expenses: Court Reporter - Diaz Depo. $ 564.28 JSB-Advantage Court Reporters - Carswell Depo. $ 1,032.48 Phipps Reporting - DOAH Transcript -Day 1 $ 1,605.67 Phipps Reporting - DOAH Transcript -Day 2 $ 542.52 WSource Group, LLC (1/8/20-1/27/20) $ 3,987.50 WSource Group, LLC (2/6/20-2/20/20) $ 9,652.50 Total Taxable Costs $ 17,384.95 Additionally, Palafox is seeking the costs incurred by its expert, Mr. Varn, up through and including the final hearing. Mr. Varn’s hourly rate for his work on this case was $250, and, including the final hearing, he spent 9.8 hours on the case. The total cost for his services was $2,450.00. Palafox is seeking a total of $136,161.00 in fees and costs. Mr. Varn testified that both the rates charged by Palafox, and the hours Palafox’s counsel spent on the matter, were reasonable and consistent with the rates charged and time spent for similar work by other attorneys in the area. His opinion was supported by detailed time records kept by Palafox’s counsel, who confirmed that the fee statements were reviewed and periodically adjusted as necessary to account for potential overlap and duplication of effort among the attorneys working on the case, or if it appeared the bill simply needed to be reduced. Respondent stipulated that Mr. Varn is an attorney with sufficient qualifications to render an opinion regarding the amount of reasonable attorney’s fees to be awarded to Palafox in this proceeding. Respondent did not object to the rates charged by the Firm, and did not challenge any of the Firm’s time entries, fees, or costs. The number of hours set forth above by the attorneys and the paralegal working on this case were reasonable, the rates charged were reasonable, and the costs expended by Palafox were reasonable.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Carmen Diaz, pay to Palafox its reasonable attorney’s fees and taxable costs in the amount of $136,161.00. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Nicholas D. Fugate, Esquire Nicholas D. Fugate, P.A. Post Office Box 7548 Tallahassee, Florida 32314 James E. Parker-Flynn, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Brett J. Cyphers, Executive Director Northwest Florida Water Management District 81 Water Management Drive Havana, Florida 32333-4712 W. Douglas Hall, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601
Findings Of Fact Respondent holds community pharmacy license No. PH0007711, renewed January 13, 1983. On May 21, 1981, Lester J. Henderson signed a new establishment permit application as owner, officer, manager and registered pharmacist. On June 9, 1981, petitioner conducted a new establishment inspection of Tampa Park Plaza Pharmacy. On June 19, 1981, Mr. Henderson wrote that "Andrew Mobley is no longer the Pharmacy Manager of Tampa Park Plaza Pharmacy, but I am . . . ." Petitioner's Exhibit No. 1. Petitioner received this notification on June 24, 1981, and, on the following day, wrote Mr. Henderson "to advise that effective as of June 19, 1981, our records were amended to reflect that you are the pharmacist manager." MBHS Corp., Inc. (MBHS), owns Tampa Park Plaza Pharmacy, (the pharmacy) and MBHS is owned in turn by its three officers. MBHS' president, Andrew Mobley, and Lester Henderson, an MBHS vice-president, are registered pharmacists. Samuel Snowden, also an MBHS vice-president and the third stockholder, is not a pharmacist. After the pharmacy opened for business, Andrew Mobley left Florida, and left the every day operation of the pharmacy to Lester Henderson, whom he knew to have had no retail experience as a pharmacist. In December of 1981, Mr. Mobley returned from Oklahoma to find a complete dearth of pharmaceutical records. Mr. Henderson explained that he did not like paperwork. Mr. Mobley returned to Oklahoma, again leaving the every day operation of the pharmacy to Mr. Henderson, but returned to Tampa when a bank that had made the pharmacy a loan threatened to call it in. He found scheduled drugs mixed in together, with unscheduled drugs, and a continued lack of records. Mr. Mobley then set up an inventory control book, something that had been neglected to that point. It developed that some Dilaudid was missing, which seemed to be news to Mr. Henderson. Mr. Mobley told Mr. Henderson the fact that the drugs were missing would have to be reported to the Department of Professional Regulation and Mr. Mobley got forms from the Department of Professional Regulation's office on Henderson Boulevard, which he gave to Mr. Henderson to fill out. Mr. Henderson never did fill them out and reportedly said "Andrew . . . must be crazy if he thinks I'm going to fill out those papers and send them in to those people." (T. 35) Mr. Mobley worked with Mr. Henderson in an effort to straighten out record keeping at the pharmacy, but also took a job at Walgreen's beginning in February of 1983. He left this job in June to take over from Mr. Henderson as pharmacy manager at the pharmacy. Mr. Henderson has not been employed at the pharmacy since. Edward G. Bludworth and Merry L. Paige, investigators in petitioner's employ, visited the pharmacy about ten o'clock on February 16, 1983. The prescription department was open; it was unlocked and there was no "closed" sign, but there was no pharmacist on duty. When the investigators asked to speak to the pharmacist, the store clerk made several telephone calls. She was only able to locate Mr. Henderson at about two o'clock, after the investigators had left. Mr. Bludworth and Ms. Paige conducted an audit of scheduled drugs at the pharmacy on February 16, 1983. Because of the lack of an inventory report as of the spring of 1981, they assumed no drugs on hand as of June 9, 1981. On this assumption they concluded that 296 tablets of Dilaudid 2 mg. were missing and unaccounted for. Dilaudid contains dihy dromorphinone [sic]. On the same assumption, they found a shortage of 41 Percodan tablets, which contain oxycodone, and an overage of 97 Demerol tablets 50 mg. Petitioner's Exhibit No. During the audit period, the pharmacy purchased 400 tablets of Dilaudid 2 mg. and 500 Percodan tablets. Id. The discrepancies uncovered by the audit exceeded significantly the five percent error rate that the investigators commonly see. Mr. Bludworth and Ms. Paige returned for a second visit on April 19, 1983, at about ten o'clock in the morning. Once again, the prescription department was unlocked and open. There was no "closed" sign and no pharmacist to be seen. This time Mr. Henderson's presence was procured by noon. On one of their visits, Mr. Henderson told the investigators that there had been a break-in at the pharmacy more than a year earlier. He said he had reported the incident at the time to the authorities but was unable to produce documentation of any such report. The investigators requested such documentation at the time of the visit, and Ms. Paige later telephoned him to ask again for documentation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one (1) year. DONE and ENTERED this 20th day of October, 1983, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1983. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Andrew Mobley Tampa Park Plaza Pharmacy 1497 Nebraska Avenue Tampa, Florida 33602 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Department of Professional Regulation Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
