Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issue presented for determination are found: Customers who testified at the hearing and those who adopted the testimony of others had three major complaints as to the quality of water and sewer service received from the petitioner. These included the inconsistency of the quality of the water, billing procedures and practices, and plant and system management. The quality of the water which petitioner provides to its customers has not been consistent. While quality has greatly improved since November of 1980, the water does, on occasion, appear rusty, muddy or yellowish and does, on occasion, discolor laundry and ice cubes. No evidence was offered as to the frequency of such occasions. Some customers have received a bill for a vacant lot upon which there was no sewer connection or water meter. Another customer was billed at the wrong address after notifying the petitioner of a change in address. A customer who spent some eighteen months in Michigan continued to receive bills in full service amounts after he had requested that his water be disconnected. His correspondence on this problem was not responded to by Petitioner. Petitioner's main office is located in Orlando, approximately one hour away from Inverness. When major breakdowns in the water and sewer system occur, a crew can be dispatched from the Orlando area. Petitioner purchased the subject water and sewer operation in June of 1978. At that time the condition of the mechanical and electrical aspects of the operation was poor and the water was high in iron content, thus causing the water to have an almost constant rusty appearance. Petitioner installed a chemical called "aquamag" to hold the iron in suspension. Aquamag does not, however, remove the iron from the water, and petitioner is presently engaged in research concerning the possibility of a new water supply. It is possible that petitioner could have a new well in operation by June of 1981. Neither the water system nor the sewer system of petitioner are currently under any citations from local or state officials or agencies. Prior to November of 1980, petitioner employed three or four operators who were not able to provide the customers with the best quality of water possible. A new operator was employed in November of 1980 and service and the quality of water has greatly improved since that time. This operator is capable of handling routine operations. If major breakdowns occur, petitioner's mechanics and electricians in Orlando can be radio dispatched to the system for any type of repairs. Petitioner's Orlando office has had a toll-free 800 number for the convenience of customers for the past eight months to one year. The number is displayed at some of petitioner's plants, but is not presently printed on the bills which the customers receive. At the time of the hearing, the customer bills were being restructured to include the petitioner's toll-free number. Prior to the acquisition of the water and sewer system by the petitioner, the former owners had approval in their tariffs filed with the Public Service Commission to charge fees for vacant lots. Such charges were dropped in May of 1979, and the bills which the customers are presently receiving containing such a charge are actually past due bills from a time prior to May of 1979. During the 1979 test year, the annual average of customers served by petitioner was 166 for water service and 130 for sewer service. At the time of the hearing, petitioner estimates approximately 235 lots for water service and 159 or 160 active sewer service customers.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the quality of service provided by petitioner to its customers in Citrus County be found to be satisfactory and that no adverse consequences be imposed upon the petitioner as a result of the quality of its service. Respectfully submitted and entered this 16th day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 16th day of April. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 East Lafayette Street Tallahassee, Florida 32301 M. Robert Christ Legal Department Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4, Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Florida public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joe Cresse, Chairman Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue Whether the Petition for Relief from an unlawful employment practice was timely-filed, and if it was not timely-filed, is this cause barred?
Findings Of Fact Petitioner filed an undated Charge of Discrimination on the basis of "race and "age" with the Florida Commission on Human Relations (Commission). On June 21, 2000, the Commission issued its Notice of Determination: No Cause and mailed a copy thereof to Petitioner. Petitioner was required by Section 760.11(7), Florida Statutes, to request a formal hearing "within 35 days of the date of determination" of no reasonable cause, failing which the claim would be barred and the complaint dismissed. The Commission notified Petitioner of this 35-day deadline in its Notice of Determination: No Cause served on Petitioner on June 21, 2000. 5. Rules 60Y-5.004(5) and 60Y-4.007(2), Florida Administrative Code, provide that the Petition for Relief must be filed within 33 days of the date of a No-cause Determination which is served on a complainant by mail. The thirty-third day following the June 21, 2000, issuance of the No-cause Determination expired on Monday, July 24, 2000. The thirty-fifth day following the June 21, 2000, issuance of the No-cause Determination expired on Wednesday, July 26, 2000. The Petition for Relief was postmarked July 31, 2000, which is five days after expiration of the statutory filing deadline. The Petition was stamped-in by the Commission Clerk on Tuesday, August 1, 2000, which is six days after the statutory filing deadline. The certified copy of the Petition stamped-in by the Commission and its post-marked envelope show that the Petition for Relief was not timely-filed with the Clerk of the Commission. There has been no affirmative showing of excusable neglect by Petitioner.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000. COPIES FURNISHED: James J. Dean, Esquire Ricky Polston, Esquire Polston & Dean, P.A. 106 East College Street Suite 900, Highpoint Center Tallahassee, Florida 32302-1836 Bobbi Debose 1129 Northeast 24th Street Gainesville, Florida 32641 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, 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 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
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
The Issue Whether Respondent is an employer as defined in Section 760.02(7), Florida Statutes.
Findings Of Fact Petitioner, Latonia Enzor, was an employee of Tallahassee Contractors, LLC. While the exact dates of her employment are not in evidence, she was first paid by the company on December 29, 2006, and last paid on June 8, 2007. Based upon federal tax returns submitted, for the July- September quarter of 2006, Tallahassee Contractors had nine employees. This tax return was signed by Frank Williams, as Manager member of the company. For the October-December quarter of 2006, Tallahassee Contractors had nine employees. This tax return was signed by Frank Williams, as Manager member of the company. For the January-March quarter of 2007, Tallahassee contractors had 9-11 employees. This tax return was signed by Frank Williams, as Manager member of the company. For the April-June quarter of 2007, Tallahassee Contractors had 11 employees. This tax return was signed by Frank Williams, as Manager member of the company. Each of the tax returns also listed Connie Fletcher as "an employee, a paid tax preparer, or another person [allowed] to discuss this return with the IRS." The Department of Revenue unemployment compensation return for the quarter ending March 31, 2007, also included an e-mail address for Ms. Fletcher at cfletcher@sandcofl.com. Sandco, Inc., is one of the companies Petitioner alleges is interrelated with Tallahassee Contractors. However, no evidence was presented to show what position Ms. Fletcher holds with either company. No competent evidence was presented to show that Tallahassee Contractors had fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year. While Petitioner indicated her belief that more than fifteen employees existed, and felt that Tallahassee Contractors was affiliated with other companies, she admitted she did not know the nature of the business or how it operated. Her knowledge was limited to her job duties, i.e., driving a truck.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 20th day of May 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Latonia Enzor 3535 Roberts Avenue, Number 274 Tallahassee, Florida 32310 Steve Ghazvini, Director Tallahassee Contractors, LLC 662 Crossway Road Tallahassee, Florida 32305 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993. Petitioner was not present in the hospital at the time of the accident. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs. ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Richard T. Ferrell Secretary Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sue Foster Executive Director Board of Veterinary Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A. 212 Interlake Boulevard Lake Placid, Florida 33852 James E. Manning, Esquire Department of Business and Professional Regulation Suite Number 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
