Recommendation Based on the foregoing, it is ORDERED that the subject petition to determine the invalidity of Rule 38D- 17.023(2)(b), Florida Administrative Code, is granted, and Rule 38D- 17.023(2)(b), Florida Administrative Code, is found to be an invalid exercise of delegated legislative authority. DONE AND ORDERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1996. COPIES FURNISHED: Claire D. Dryfuss, Esquire M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack E. Ruby, Esquire 2596 Seagate Drive, Suite 100 Tallahassee, Florida 32301-5032 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Findings Of Fact The Secretary of the Respondent, Department of Transportation, determined that the Department's Division of Construction and Division of Materials and Research were over-staffed within the Department's third district. The Secretary identified ninety-nine positions as being surplus, and initiated action to delete them. The procedures for accomplishing the layoffs and transfers that the Secretary's decision necessitated are set out at Section 110.227, Florida Statutes, and in rules of the Department of Administration ("DOA" hereafter), Chapter 22A-7, Florida Administrative Code. DOA rules set out standards whereby an employee laid off can accept a position at the same or lower classification within a designated competitive area, and in effect "bump" an employee who has fewer retention points under the DOA rules. DOA rules require that an agency seeking to implement a layoff obtain approval from DOA as to what classifications will be eligible to be bumped, and as to what the competitive for layoff purposes will be. The Department of Transportation requested approval for confining retention rights to its Division of Construction and its Division of Materials and Research within its third district, which covers north Florida counties. DOA approved limiting the retention rights to the designated division but designate the competitive area as Statewide rather district-wide. The Department of Transportation thereafter notified employees affected by the layoff, and advised them of available options for retention. The Department did not engage in rule-making procedures in implementing the layoff. The Petitioner Johnnie T. Groves has been employed with the Department of Transportation for twenty-two years. Prior to the instant layoff action, he was employed as an "Engineer I" in the Division of Construction in Jacksonville, Florida. He was advised by letter dated July 9, 1980, that his position had been identified as surplus. He thereafter received "layoff guidelines," from the Department. Under procedures followed by the Department, he was given the option of staying in Jacksonville but having to move back two positions to a position as "Engineering Technician III," or moving to Perry, Florida, to take another position as an "Engineer I." The option of staying in Jacksonville would result in the Petitioner making less money. Moving to Perry would cause him considerable inconvenience. He has resided in Jacksonville for some time and operates a farm there which supplements his income. The Petitioner D. J. Miller has been employed with the Department of Transportation for more than twenty years. Prior to the implementation of the layoff, Miller was employed by the Department in its Jacksonville office as an "Engineer I." He received the same notification that his position was scheduled to be deleted as did the Petitioner Groves. His options under the procedures followed by the Department were to stay in Jacksonville and to take a position as an "Engineer I" in the "pre-stress construction yard," or to move to Gainesville and take a position similar to the one that he had held in Jacksonville. The job in Jacksonville was at a lower rate of pay and, due to an eye problem and dust at the pre-stress construction yard, could cause the Petitioner some physical difficulties. The Petitioner is divorced and has a twelve-year-old son. He relies upon his parents, who reside in Jacksonville, to assist in caring for his son, and any move would impose a hardship upon him. The Petitioner C. R. Henderson has been employed by the Department of Transportation for twenty years. At the time that the layoff was announced, the Petitioner was employed in the Department's Construction Division in Jacksonville as an "Engineer I." The Petitioner received the same notification that his position was being deleted as had the Petitioners Groves and Miller. The Petitioner's options were to stay in Jacksonville and take a position in the pre-stress construction yard, or move to Lake City where he could take a position similar to the one that he had held in Jacksonville. He did not feel competent to take the position in the pre-stress construction yard. Taking the job in Lake City has created a hardship for the Petitioner. He operates a ranch to supplement his income near Jacksonville, Florida, and the new location is seventy-two miles from his home.
Conclusions By letter dated March 31, 2010, the Agency for Persons with Disabilities (APD) informed Angels of America, Inc., that it was terminating the Medicaid Waiver Services Agreement that it and Angels of America had entered into. Following the receipt of a request for an administrative hearing, the matter was referred to the Division of Administrative Hearings (DOAH). On May 26, 2010, APD moved to dismiss the proceeding on the basis that Petitioner had not shown that its substantial interests would be affected by the Agency’s action. On June 9, 2010, the Administrative Law Judge entered an Order Relinquishing Jurisdiction and Closing File. THEREFORE, based on the foregoing and being otherwise fully apprised of the premises, it is hereby ORDERED that the hearing request filed in the above-styled case is hereby DISMISSED and this case is CLOSED, DONE AND ORDERED, this 16th day of June, 2011, in Tallahassee, Leon County, Florida. _ . PSY Nt ee Percy W. Mallison, Jr., Esquire Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, FL 32399-0700 APD-11-4859-FO | 1 Filed June 16, 2011 1:04 PM Division of Administrative Hearings CERTIFICATE OF SERVICE Copies provided to: Jeffrey C. Marty, Esa. Juan R. Collins, Esq. Post Office Box 3159 Agency for Persons with Disabilities Zephyrhills, Florida 33539 4030 Esplanade Way, Suite 335B Tallahassee, Florida 34785 APD Area 13 Office | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this 16th day of June, 2011. Percy i Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 APD-11-4859-FO | 2
The Issue Whether Florida Administrative Code Rule 61G15-20.006(2) is an invalid exercise of delegated legislative authority pursuant to Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Petitioner, D. Gregory Ruck, filed an application for licensure by endorsement as a professional engineer. Petitioner is a 1990 graduate of Ohio State University with a degree in engineering physics. Although Ohio State has many engineering programs which are accredited by the Accreditation Board for Engineering and Technology (ABET), the engineering physics program is not accredited. The Board of Professional Engineers has rulemaking authority concerning review and approval of schools or colleges and the courses of study in engineering in such schools and colleges. § 471.013, Fla. Stat. Florida Administrative Code Rule 61G15-20.006 reads as follows: Educational Requirements The evaluation of curricula and standards of accreditation for approval of degree programs required by Section 471.013, F.S., shall be based upon: An overview of engineering programs within the United States accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering And Technology, Inc. (ABET), and An evaluation of such programs and schools, following the definition of the practice of engineering set forth in Section 471.005(6), F.S. This rule shall not apply to Board approved engineering programs or where ABET accreditation is available to a school or college of engineering. Acceptable curricula requirements and degree programs shall conform to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc. (ABET) and found in the applicable Annual Report of ABET. The evaluation of the applicant's transcript and degree program shall include a determination of whether such transcript and degree program is comparable to the above-mentioned model by the Education Advisory Committee as defined in Rule 61G15-18.015. In order to verify the applicant's curriculum and engineering program the Board may require evidence from the applicant's institution(s) at the cost of the applicant as to the areas mentioned in 61G15-20.006(3), including when the information necessary for the evaluation set forth in (4) is not available, a site visit by Educational Advisory Committee of the Board at the expense of the applicant. (emphasis supplied) On June 24, 2005, Petitioner was denied licensure by Respondent because Petitioner's bachelor's degree was from the engineering physics program at Ohio State University, which is not accredited by the Engineering Accreditation Committee of the ABET. Accordingly, Petitioner is substantially affected by the challenged Rule and has standing to bring this action. Florida Administrative Code Rule 61G15-20.006(2), has previously come under court scrutiny. Petitioner cites Gaudet v. Florida Board of Professional Engineers, 900 So. 2d 574 (Fla. 4th DCA 2004). Respondent now cites the same case in its Proposed Final Order. In response to the mandate of Gaudet, Respondent commenced rulemaking by publishing a notice of rule development of Florida Administrative Code Rule 61G15-20.006. The notice was published September 23, 2005, more than 11 months after the Gaudet opinion was issued, and more than three months after this rule challenge was filed.
The Issue Whether a proposed amendment to Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is housed in Tamoka Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the proposed rule amendment at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida. The Proposed Amendment to Rule 33-5.006(8), Florida Administrative Code. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. . . . [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code. Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following: Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. Rule 33-5.006(7), Florida Administrative Code, provides: (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides: (3) No visit should be denied: . . . . (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution. At issue in this proceeding is a proposed amendment to Rule 33- 5.006(8), Florida Administrative Code: (8)(a) An unmarried i[I]nmate[s] [not married] may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-immediate family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. Married or unmarried inmates may have non- immediate family member couples on the visiting list after approval, but the member of the couple who is the opposite sex of the inmate may not visit the inmate without the spouse. New proposed language of the rule is denoted by underlining and words or letters removed are indicated by brackets. In this proceeding the Petitioner has only challenged proposed paragraph (c) of Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Proposed Rule Amendment"). The Respondent has indicated it proposed the addition of paragraph (c) to Rule 33-5.006(8), Florida Administrative Code, because of security concerns. As explained by a representative of the Respondent the following are those security concerns: One spouses (i.e., the wife) may be visiting an inmate without the knowledge of the other spouse (i.e., the husband). If the husband becomes aware of the fact that his wife is visiting an inmate the husband may become alarmed and complain to the Respondent and his wife about the visitation. When the husband complains to his spouse or the Respondent and the inmate learns of the problem, the inmate may become upset. The Respondent indicated that there have been a few instances where inmates who, upon learning that husband of the inmate's visitor has been making it difficult for the visiting spouse to continue with visitation, have attempted to escape to get to the husband. The evidence failed to prove that there is a significant security problem if inmates are allowed to have visitation from a married visitor without requiring that both spouses visit the inmate at the same time. The evidence concerning escape attempts (at best, 5 to 10 attempts during the past thirty years) was speculative. No specifics concerning such attempts were provided when the Petitioner asked for specifics. Nor did the evidence prove that the Respondent's security is inadequate to handle the relatively low number of such escape attempts or that any such escape attempt has been successful. The Notice of Proposed Rulemaking for the Proposed Rule Amendment included a "Summary of the Estimate of Economic Impact of the Rule". Although the Petitioner challenged the adequacy of the Respondent's determination of the economic impact of the Proposed Rule Amendment, the evidence presented during the final hearing of this case failed to prove that the economic impact statement was inadequate.
The Issue The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order, authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.” The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part: Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order. Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s practice while on probation; and a prohibition against supervising physician assistants during the course of probation. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within 30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation. DONE AND ENTERED this 29th day of July, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 29th day of July, 2013.
The Issue Whether Discovery Experimental and Development, Inc. ("Discovery") is entitled to an award of reasonable attorney's fees and costs under the authority of Section 120.595(3), Florida Statutes?
Findings Of Fact In Discovery Experimental and Development, Inc., v. Department of Health, DOAH Case No. 99-0005RX (the "rule challenge"), three existing rules of the Department were challenged by Discovery pursuant to Section 120.56(3), Florida Statutes. At final hearing, challenge to one of the three was dropped because it was no longer in effect. On February 22, 1999, the Final Order was rendered in the case. Discovery prevailed as to one of the two rules still subject to the proceeding. Rule 69F-12.019, Florida Administrative Code (the "invalidated rule"), was determined to constitute an invalid exercise of delegated legislative authority. The determination of invalidity was made because the rule, in an unrestrained manner, purported to allow Department agents to inspect any property, building, or records in determining compliance with certain state drug laws. The statute which the rule attempts to implement circumscribes which property, building, or records may be inspected. The Administrative Procedure Act mandates the following: If the . . . administrative law judge declares a rule or portion of a rule invalid pursuant to Section 120.56(3), Florida Statutes, a[n] . . . order shall be rendered against the agency for reasonable costs and attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. Section 120.595(3), Florida Statutes. Substantial Justification or Special Circumstances The Department's witness testified that the rule had been amended into its invalidated form, to make the "rule more understandable and easier to read." (Tr. 58). The amended rule is more expansive than its predecessor with regard to what buildings, property, and records are subject to inspection. Still, the procedures governing the Department's inspectors (outside of those provided by the challenged rule) remained consistent before and after the amendment: to inspect only establishments, commercial or otherwise, that "are involved in the drug, device and cosmetic industry" (Tr. 60), all in relation to compliance with Chapter 499, Florida Statutes. The Department's bureau chief responsible for supervising inspectors and for development of the invalidated rule thought that department inspections would be confined by the challenged rule itself to only those buildings, property, and records as allowed by statute since the rule in subsection (1) announces that "[i]nspections and investigations are conducted to determine compliance with the provisions of Chapter 499, [and] Chapter 893, F.S. . . ." This expectation defies the plain wording of the rule that allows inspectors access to any buildings, property, or records. Reasonable Costs and Attorney's Fees Discovery was represented by its in-house counsel, R. Elliott Dunn, Esquire. As in-house counsel, Mr. Dunn is paid a salary. He does not normally keep records of time spent in matters representing Discovery, nor is he required to do so by his employer/client. He did not keep any contemporaneous records of time actually spent on the rule challenge. DOAH Case No. 99-0005RX was the first proceeding pursuant to Section 120.56, Florida Statutes, in which Mr. Dunn had ever been involved. The challenge involved extensive research into the Fourth Amendment's impact on search and seizure cases in industries historically regulated in a pervasive manner by government. In addition to legal services expended in litigation, Mr. Dunn was required to review the law in relation to both Section 120.56, Florida Statutes, and the Fourth Amendment's relationship to regulatory inspections conducted within the drug and pharmaceutical manufacturing industry. Mr. Dunn spent approximately 104 hours on the case, of which roughly 83 hours (80%) related directly to the invalidated rule. A rate of $175. per hour is a reasonable rate for attorney's fees in a case of this kind. The petition in this case requests that fees be awarded for 52 hours of work at $175 per hour for a total fees award of $9,100. Discovery also claims costs in the amount of $648 for air fare for both Mr. Dunn and Discovery's President, James T. Kimball, to travel to Tallahassee from Wesley Chapel via the Tampa International Airport for the final hearing. (Mr. Kimball appeared pro se in DOAH Case No. 99-0006RX, a case that was consolidated with Case No. 99-0005RX but dismissed for lack of standing.) Additional costs claimed by Discovery are $78 for automobile rental and parking. No receipts for any of the costs claimed were presented by Discovery. The only supporting documentation is an exhibit to an affidavit sworn to by Mr. Dunn and attached to the petition.
The Issue The issue to be determined is whether Petitioners, William Guererro and Christina Bang, a/k/a Christina Guerrero, are entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad, related to litigation between the parties in DOAH Case No. 13- 2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
