Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
The Issue Whether Petitioner should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (the Act), Section 57.111, Florida Statutes. Specifically, the parties dispute whether Respondent was substantially justified in bringing the Administrative Complaint against Petitioner and/or whether special circumstances exist which would make the award of attorney's fees and costs unjust.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.43 and Chapters 455, 456, and 466, Florida Statutes. At all times pertinent to this proceeding, Dr. Fish has been a dentist licensed by the State of Florida, where he has maintained a practice. At all times pertinent to this proceeding, Dr. Fish was represented by Max Price, Esquire. By letter dated April 30, 1997, Allen Horowitz, D.D.S., filed a complaint against Dr. Fish. By letter dated October 22, 1997, Laura Eggnatz Tepperberg, an Investigation Specialist II employed by the Department, notified Dr. Fish that there was a pending investigation and enclosed documents that supported the investigation. By letter dated November 20, 1997, Mr. Price notified Ms. Tepperberg that he represented Dr. Fish and requested a copy of the complete investigation file as soon as the investigation was completed. This letter also suggested that Dr. Horowitz was retaliating against Dr. Fish because Dr. Fish had served as an expert witness for the plaintiff in a civil action brought against Dr. Horowitz. On December 15, 1997, Ms. Tepperberg completed her Investigative Report. By letter dated March 9, 1998, Mr. Price acknowledged receipt of a copy of the Department's investigative file. The letter requested a copy of a videotape that was referred to by the investigative material but was not enclosed in the package of materials that had been provided. By letter dated March 10, 1998, counsel for the Department advised Mr. Price that he had overlooked the videotapes when preparing the package of material and was in the process of having a copy made for him. By letter dated April 24, 1998, the Department mailed a copy of the videotape to Mr. Price. By letter dated April 30, 1998, Mr. Price advised the Department that the videotape had been damaged in transit and requested a second copy of the videotape. By letter dated June 12, 1998, the Department mailed Mr. Price a second copy of the videotape. By letter dated June 26, 1998, Mr. Price advised the Department that the second copy of the videotape had been damaged in transit and requested a third copy of the videotape. On July 9, 1998, the Department caused a third copy of the videotape to be hand-delivered to Mr. Price. In his correspondence pertaining to the videotape, Mr. Price repeatedly asserted that he would need to review the entire investigative file, including the videotape, before he could file a response to be considered by the Probable Cause panel. By letter dated July 24, 1998, Mr. Price filed his response to the investigative file. The Department received the letter and attachments in Tallahassee on July 28, 1998. Dr. Fish's response to the investigative file disputed, but did not disprove, the evidence supporting the allegations against him. By letter dated July 28, 1998, Mr. Price filed a supplemental response to the investigative file. The Department received the supplemental response in Tallahassee on August 7, 1998. This supplemental response also disputed, but did not disprove, the evidence supporting the allegations against him. On July 31, 1998, the Probable Cause Panel met in Fort Myers and found that probable cause existed to file an administrative complaint against Dr. Fish. The Probable Cause Panel had before it at its meeting on July 31, 1998, an investigative report and supporting documentation. That packet of information substantially justified the Department's decision to initiate the Administrative Complaint that underpinned DOAH Case No. 99-3742. In its Proposed Recommended [sic] Order, the Department stipulated that Dr. Fish's response dated July 24, 1998, and his supplemental response dated July 28, 1998, were not reviewed by the Probable Cause Panel at or before its meeting of July 31, 1998. The parties stipulated that Dr. Fish was entitled to file his response within 20 days after he received the entire investigative file on July 9, 1998. Dr. Fish's response filed July 24, 1998, was timely. The parties stipulated that Dr. Fish was entitled as a matter of law to have his timely response considered by the Probable Cause Panel prior to its consideration and vote of probable cause on July 31, 1998.3 The failure to do so constituted a due process violation. On June 1, 2000, the undersigned granted the Department's Amended Motion to Relinquish Jurisdiction and closed DOAH Case No. 99-3742. Dr. Fish thereafter timely filed his petition for attorney's fees and costs4 pursuant to the Act. The parties stipulated that the proceeding below was initiated by the Department5, that Dr. Fish qualified as a prevailing small business6, and that he incurred attorney's fees and costs in excess of $15,000.00, which Section 57.111(4)(d)2, Florida Statutes, sets as the maximum that can be awarded. Consequently, if Dr. Fish is to be awarded attorney's fees and costs, the amount of the award should be $15,000.00. Section 57.111(4), Florida Statutes, mandates an award of attorney's fees and costs to a prevailing small business party as follows: (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. Section 57.111(3)(e), Florida Statutes, defines the term "substantially justified" as follows: (3)(e) A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the state agency. The Act does not specify what acts constitute special circumstances which would make an award of attorney's fees and costs unjust within the meaning of Section 57.111(4)(a), Florida Statutes. The Department failed to establish the existence of special circumstances which would make an award of attorney's fees and costs unjust. The Department established that it had information that substantially justified the filing of the Administrative Complaint in DOAH Case No. 99-3742. Dr. Fish did not prove that the Probable Cause Panel's failure to consider his responses to the investigative file vitiated that substantial justification.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, 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 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner's Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule (Petition) should be dismissed on the ground that the "challenged rule in this proceeding has been effectively repealed by the Florida Legislature by Section 626.854(11), Florida Statutes, effective October 1, 2008," as requested by Respondent.
The Issue These consolidated cases involve three issues: (1) whether the Department of Revenue's ("the Department") assessment against Bayfront HMA Medical Center, LLC ("Bayfront"), for sales tax on commercial rent payments is erroneous; (2) whether Bayfront is entitled to a refund for overpayment of sales tax on commercial rent payments from August 1, 2014, to July 31, 2017; and (3) whether Bayfront is entitled to a refund for overpayment of sales tax on commercial rent payments from August 1, 2017, to May 31, 2018.
Findings Of Fact The Department is the state agency responsible for administering Florida's sales and use tax laws pursuant to chapter 212, Florida Statutes. Bayfront, a for-profit LLC, is a 480-bed facility that is housed in a large six-floor building with adjacent smaller buildings comprising the hospital campus in downtown St. Petersburg. The Department issued Bayfront's sales tax registration in August 2013. The petitions in DOAH Case Nos. 19-1881 and 19-1882 contest the Department's tax assessment and refund application denial for the period of August 1, 2014, to July 31, 2017. The petition in DOAH Case No. 19-1880 contests the Department's refund application denial for the period of August 1, 2017, to May 31, 2018. While the Department audited all of Bayfront's Florida sales and use tax liabilities, in this proceeding, Bayfront only challenges the Department's determination that Bayfront owes sales and use tax on its base rent and additional rent payments for space it leases at Johns Hopkins All Children's Hospital ("All Children's Hospital"). Bayfront Baby Place On November 30, 2007, All Children's Hospital (as the landlord), and Bayfront (as the tenant) entered into a lease agreement for a term of 23 years wherein Bayfront leases 91,195 square feet, or 12.57 percent, of All Children's Hospital to provide obstetric services. Bayfront refers to this space as Bayfront Baby Place (although for purposes of this Recommended Order, it may also be referred to as "Bayfront"). Together with All Children's Hospital, Bayfront Baby Place is a regional perinatal intensive care center licensed under sections 383.15 through 383.19, Florida Statutes. A regional perinatal intensive care center is a specialized unit within a hospital specifically designed to provide a full range of health services to women with high-risk pregnancies and intensive care services for newborns. Bayfront Baby Place provides these services to low and high-risk mothers and normal newborns. Both outpatients and inpatients are treated at this facility. Approximately 50 to 60 percent of Bayfront Baby Place's monthly patient visits are for outpatient treatment. Bayfront Baby Place is a secure facility, requiring identification for patients and others entering the facility. The 94,195 square feet of leased space is allocated as follows: The first floor has 3,532 square feet of leased space and consists of the entrance with a security station, gift shop, lobby area, and conference room. Patients and family members enter at the first-floor entrance. The conference room is used by Bayfront Baby Place's staff and to hold classes for the public. Other than the entrance, inpatients do not usually use the first floor. The second floor has 264 square feet and is not accessible to Bayfront's inpatients or outpatients. The third floor has 86,824 square feet and is used to provide obstetric medical services to inpatients and outpatients. On this floor there are eight triage rooms used solely for outpatient care; 14 antepartum rooms for both outpatient and inpatient treatment; four operating rooms; eight post-anesthesia recovery bays; 13 labor and delivery rooms; a nursery for newborns; and 40 mother-baby inpatient rooms. The fourth floor has 575 square feet and is not accessible to Bayfront's inpatients or outpatients. Under its lease, Bayfront is responsible for paying sales tax on base rent and additional rent payments. The lease specifies that utility services (electricity, water, sewer, heating, air conditioning, plumbing, medical gas, etc.) are charged to the tenant as additional rent. All Children's Hospital provides Bayfront with an itemized invoice each month detailing base rent, Florida sales tax, environmental services, routine maintenance, dietary services, utilities, medical gases, and central energy plant. Bayfront Baby Place's inpatient room charge exceeds $2,000 per day.1 The room fee includes nursing care, medical supplies, dietary services, and general overhead charges. 1 Bayfront characterizes the room charge as "rent." However, Bayfront's invoices label the charge as "Private Room OB." Patients receiving outpatient treatment are not considered inpatients and are not charged an inpatient room charge. Bayfront's witnesses, Charles Tyson, Jane DeMauro, and David Stephens, all acknowledge the leased space is used exclusively to provide medical services. It is not a hotel, a nursing home, a psychiatric facility, or a substance abuse facility. The Audit On August 30, 2017, the Department initiated a sales and use tax audit of Bayfront for the period of August 1, 2014, to July 31, 2017. The audit was conducted by Glenn Morrison, an auditor at the Department's Largo Service Center, and the scope of the audit was all of Bayfront's sales and use tax liabilities imposed under Florida law. Bayfront's representative for the audit was Camille Henry, Director of Finance. The Department's initial assessment was issued on April 16, 2018, and assessed an amount due of $1,002,761.97 of tax and accrued interest. The assessment contained seven audit exhibits. Bayfront is only contesting audit assessment exhibit B03-Commercial Rent for All Children's Hospital, in which the Department determined Bayfront failed to pay sales and use tax owed on utilities, maintenance, and other services that are components of its rent payments. On May 8, 2018, tax consultant James Malone informed the Department of FM Cost Containment's representation of Bayfront for the audit. From May 17, 2018, to about May 31, 2018, FM Cost Containment supplied additional taxpayer records to the Department. After review of the newly-supplied records, the auditor, Mr. Morrison, determined the additional records supported substantial reductions to most of the audit assessment exhibits. However, the Department rejected Bayfront's challenge to audit exhibit B03 and made no change to B03 in the assessment revisions. The Department's Largo Service Center held a telephone conference with James Malone on June 7, 2018, and reviewed all issues. On June 8, 2018, the Largo Service Center issued its revised Notice of Intent to Make Audit Changes. Mr. Malone did not request a second audit conference, and instead asked the Largo Service Center to close his file and forward it to Tallahassee for further processing. On June 21, 2018, the Department's Compliance Standards Process office in Tallahassee issued to Bayfront a Notice of Proposed Assessment having a balance due of $124,395.34 tax and $24,412.02 accrued interest. On June 29, 2018, Bayfront, through FM Cost Containment, filed a timely informal protest with the Department, challenging audit exhibit B03. In its protest, Mr. Malone cites sections 212.08(7) and 212.031(1)(a)2., Florida Statutes; Florida Administrative Code Rule 12A-1.001; and Beverly Enterprises-Florida, Inc. v. Department of Revenue, No. 94-2259-CA-16-L (Fla. 18th Cir. Ct. Apr. 30, 1996) to support the claim that "the lease, rental, and license to use rooms exclusively as dwelling units by patients in hospitals and other qualifying healthcare facilities are … exempt from tax." On October 4, 2018, the Department issued a Notice of Decision sustaining the assessment and, due to accruing interest, Bayfront's tax liability increased to $151,588.36. This decision was prepared by TADR tax conferee Clay Brower, who retired from the Department in the fall of 2018. In its Notice of Decision, the Department rejected Bayfront's argument that its leased space is used exclusively as dwelling units and explained that only patients and inmates are exempt from paying sales tax under section 212.08(7)(i), a sales tax exemption that is not available to Bayfront, which is a Florida for-profit business entity and not a patient or inmate. On November 30, 2018, Bayfront filed a petition challenging the Department's Notice of Decision. Refund I (Case No. 19-1881) On May 29, 2018, Bayfront filed an application with the Department seeking a refund of $546,068.49 for the period of November 1, 2014, to July 31, 2017 ("Refund I"). Because the Department's service center was still involved with the audit, this refund application was sent to auditor Glenn Morrison in Largo for processing. As Bayfront's landlord, All Children's Hospital is the taxpayer responsible for remitting commercial rent tax to the state. § 212.031(3), Fla. Stat. In order to have standing for a refund claim, Bayfront needed to obtain an assignment of rights from its landlord. § 215.26(1), Fla. Stat. Along with its refund application, Bayfront provided the Department with All Children's Hospital's executed assignment dated May 24, 2018, for the refund period. Bayfront's reason set forth in its refund application was: "NT Rental Tax-Patients Rooms- Sec. 212.08(7), F.S.; Sec. 212.031(1)(a)2., F.S.; Rule 12A- 1.001 indicate that the lease, rental and license to use rooms exclusively as dwelling units by patients in hospitals and other qualifying healthcare facilities are also exempt from tax." On June 25, 2018, the Department issued its Notice of Intent to Make Tax Refund Claim Changes, denying Bayfront's application. On June 29, 2018, Bayfront timely filed an informal protest with the Department challenging the denial of its refund application. In its protest, Bayfront repeated the same argument from its protest of the assessment. See ¶17. On October 4, 2018, the Department issued a Notice of Decision of Refund Denial sustaining the denial of the refund application on the same basis as its Notice of Decision. On November 30, 2018, Bayfront filed a petition challenging the Department's Notice of Decision of Refund Denial. Refund II (Case No. 19-1880) On July 10, 2018, Bayfront filed a second refund application with the Department. This refund claim sought $117,586.85 for the period of August 1, 2017, to May 31, 2018 ("Refund II"). Bayfront's reason in this application was: "Tax paid on NT Rental Tax - Patients Rooms pursuant to Sec. 212.08(7), F.S.; Sec 212.031(1)(a)2." Refund II was sent to Tallahassee for processing and was assigned to refund tax auditor Chris Anderson. By Notice of Proposed Refund Denial issued on September 4, 2018, the Department denied Bayfront's application determining that the lease was taxable and the leased space was not transient rental accommodations under rule 12A-1.061. When Mr. Anderson issued the denial of the refund claim he did not know of the earlier audit or the first refund application denial. His analysis and conclusion were based solely on issues raised by Bayfront in Refund II. On September 7, 2018, Bayfront timely filed an informal protest with the Department challenging the denial of Refund II. In this protest, Bayfront repeated the same argument it made in its protest of the initial assessment and Refund I. See ¶17. On October 4, 2018, the Department issued a Notice of Decision of Refund Denial sustaining the denial of Refund II on the same basis as its Notice of Decision sustaining the assessment and the Notice of Decision of Refund Denial in Refund I. On November 30, 2018, Bayfront filed a petition challenging the Department's Notice of Decision of Refund Denial of Refund II. Bayfront's Position Bayfront's three petitions are essentially the same, with the only difference being the specific facts relevant to the audit assessment and each refund application. In the Joint Pre-hearing Stipulation, Bayfront claims it is exempt and excluded from sales and use tax on its commercial rent payments because: (1) patient rooms and space used principally by patients are dwelling units excluded from tax under section 212.031(1)(a)2.; and (2) Bayfront's re-lease of space to its patients is excluded from tax as a sale for resale pursuant to rule 12A-1.039(1)(b). In its Proposed Recommended Order, Bayfront also argues that the Department's criteria for distinguishing a space used exclusively as a dwelling unit from a space used for medical care constitutes an unadopted rule. The Capstan Report In support of its arguments that patient-accessible areas of Bayfront are used exclusively as dwelling units, or should be considered a lease for re-lease, and thus excluded from tax, Bayfront retained the services of Capstan, a separate consulting firm, to prepare a space-use report. The report, prepared by David Stephens, provides a facility use analysis of Bayfront Baby Place based on the square footage of the public space and private space. To prepare the report, Mr. Stephens, conducted an on-site inspection on September 21, 2018, and subsequently prepared the September 24, 2018, Capstan report after viewing each floor of the leased space with Bayfront staff. Mr. Stephens, who is not an engineer, testified as a lay witness, rather than an expert. For purposes of the Capstan report, spaces determined to be accessible to patients and, therefore, "public," included patient rooms, patient suites, operating rooms, the nursery, hallways, bathrooms, lobbies, conference rooms, and the front portion of nurses' stations. Spaces determined to be administrative and, therefore, "private," included employee rooms, employee break rooms, areas behind the nursing stations, offices, labs, laundry rooms, storage spaces, hazardous waste rooms, and janitorial closets. Based on the floor plans and information from the visit, Mr. Stephens used satellite imagery to determine the square footage accessible to patients and the square footage accessible to only Bayfront staff. The parties dispute what portion of the third floor is public versus private. At final hearing, Mr. Stephens testified that the public (patient- accessible) portion of the entire leased space is 85 percent (77,483 divided by 91,195), if the first and third floors are considered. If only the public square feet from the third floor are considered, the total public square feet for the entire leased space equals 81 percent (73,951 divided by 91,195). Mr. Stephens also did a separate calculation for only the patient rooms, patient suites, and hallways, and determined the total public square feet for those areas to be 52 percent of the leased space. The Capstan report is of limited value. Other than visiting Bayfront Baby Place on one occasion, Mr. Stephens testified that he was unfamiliar with the taxpayer, he engaged in no independent research, and the classification of leased space as "public" versus "private" was supplied by FM Cost Containment, the entity hired by Bayfront to respond to the audit. The report fails to distinguish between the portions of the facility used exclusively by inpatients, from that used for outpatient medical treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter final orders in these consolidated cases sustaining the assessment and denying Bayfront HMA Medical Center, LLC's, refund applications. DONE AND ENTERED this 7th day of February, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 7th day of February, 2020. COPIES FURNISHED: Mark S. Hamilton, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 (eServed) Joseph C. Moffa, Esquire Moffa, Sutton & Donnini, P.A. Trade Center South, Suite 930 100 West Cypress Creek Road Fort Lauderdale, Florida 33309 (eServed) Randi Ellen Dincher, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Rex D. Ware, Esquire Moffa, Sutton & Donnini, P.A. 3500 Financial Plaza, Suite 330 Tallahassee, Florida 32312 (eServed) Jonathan W. Taylor, Esquire Moffa, Sutton & Donnini, P.A. Trade Center South, Suite 930 100 West Cypress Creek Road Fort Lauderdale, Florida 33309 (eServed) James A. Zingale, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts, are found: At all times material to this proceeding, Respondent has held Florida Teacher's Certificate No. 270021, issued by the Department of Education, State of Florida. Respondent's Florida Teacher's Certificate covers the areas of elementary education and early childhood education. On or about October, 1983, the Grand Jury filed an eight (8) count indictment against the Respondent in the Nineteenth Judicial Circuit. State of Florida vs. Laurence J. Jacobson, Case No. 83-1079-CF-A. On July 29, 1985, after being tried and convicted by a jury of three counts of sexual battery on a person eleven (11) years of age or less, a violation of Section 794.011(2), Florida Statutes and punishable as a life felony, and four (4) counts of making a lewd, lascivious or indecent assault or act upon or in the presence of a child under the age of fourteen (14) years, a violation of Section 800.04, Florida Statutes, and punishable as a second degree felony, the Respondent was sentenced to three (3) life terms with a 25 year minimum mandatory sentence, the last two (2) sentences to run concurrently with the first sentence and four (4) fifteen (15) year sentences with the first fifteen (15) year sentence to run consecutively with the first life sentence and the last three (3) fifteen (15) year sentences to run concurrently with the first fifteen (15) year sentence. The Respondents was given 686 days credit against his sentence for time incarcerated prior to imposition of sentence. The Respondent was committed to the department of Corrections and is presently serving the sentences imposed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's Teaching Certificate for violation of Counts I and II of the Amended Administrative Complaint. It is further RECOMMENDED that Count III of the Amended Administrative Complaint be DISMISSED. RESPECTFULLY SUBMITTED and ENTERED this 1st day of April, 1988 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2906 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner. The Respondent failed to submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1 - 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4 - 19. Adopted in Finding of Fact 3 but clarified. 20 - 21. Adopted in Finding of Fact 4 but clarified. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Barr Wilde Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Sidney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire Mr. Laurence Jacobson W. Douglas Beason, Esquire ID No. 098761 ROSE, SUNDSTROM & BENTLEY Post Office Box 221 2544 Blairstone Pines Drive Raiford, Florida 32083-0221 Tallahassee, Florida 32302-1567
