The Issue The issues in this proceeding are whether the Respondent unjustifiably filed its application for licensure as a nursing home for the 1982 calendar year later than required, and, if so, what, if any, administrative fine should be imposed.
Findings Of Fact The Petitioner is the agency responsible for enforcing the provisions of law pertaining to the licensure of nursing home facilities. Petitioner is specifically charged by statute with the responsibility of processing applications for renewal of nursing home licenses, and for determining when applications are filed late and whether a late fee should be imposed. Section 400.111, Florida Statutes. The Respondent is a nursing home licensed by Petitioner. Petitioner issued the Respondent a license which specifically covered the period January 1, 1981,through December 31, 1981. The cover letter which accompanied delivery of the license to the Respondent also specified dates that the license was effective. During 1980, the Florida Legislature amended provisions of Florida Statutes relating to licensure of nursing homes so as to require that nursing homes apply to renew licenses at least ninety (90) days prior to the expiration of the existing license. In August, 1980, Petitioner specifically notified all licensed nursing homes of the statutory amendments and of homes' responsibilities to reapply for licensure at least ninety (90) days in advance of the expiration of existing licenses. Petitioner developed a procedure whereby all licensed nursing homes would be mailed a notice and a blank application with instructions at least one hundred twenty (120) days prior to the expiration of the license. Petitioner developed a "master log" which listed all nursing home facilities and showed the dates when existing licenses would expire. Nursing homes whose licenses expired on December 31, 1981, were mailed this package of material on August 19, 1981. This allowed the nursing homes ample time within which to prepare and submit applications prior to October 2, 1981, which was ninety (90) days prior to the expiration of the 1981 licenses. While no specific evidence was offered to establish that the packet of materials was delivered to the Respondent, the Petitioner's office procedure is sufficient to give rise to a presumption that the package of materials was placed in the mail, and it is appropriate to presume that having been mailed, the materials were received by Respondent. Respondent's president testified that he never received the materials; however, no evidence was presented as to the Respondent's office procedures sufficient to overcome the presumptions that Petitioner's office procedures were followed and that materials placed in the mail are delivered. On November 10, 1981, Petitioner sent another letter to Respondent reminding it of its responsibility to file an application for renewal of its license. Respondent ultimately submitted its renewal application on November 18, 1981, to the Pinellas County Health Department in accordance with the provisions of Rule 10D-29.35, Florida Administrative Code, which were in effect at that time. The application was thus filed forty-five (45) days after the October 2, 1981, deadline. The Respondent is a thirty-eight (38) bed nursing home facility. The annual license fee imposed upon nursing home facilities for the 1981 licensure year was two dollars ($2) per bed. In Respondent's case, the fee was seventy- six dollars ($76). By statute, the late fee imposed for the untimely filing of an application for relicensure is one-half of the license fee for the prior year for each day that the application for relicensure is late. This amounts to a late fee in the Respondent's case of $1,710. The Petitioner renewed Respondent's license for the 1982 calendar year on December 7, 1981. There was no period of time during which the Respondent was unlicensed.
Findings Of Fact On April 18, 1988, Respondent, Jack Schenkel, was employed as one of fifteen fire fighter/emergency medical technicians, (EMT), with the Tarpon Springs Fire Department. He was scheduled to work on C shift which was to start at 7 am and extend for 24 hours until 7 am, April 19, 1988. In accordance with normal procedure, he then would have been off for 48 hours before his next shift. At approximately 1:30 am on April 18, Lt. Dennis L. Jennings, B shift supervisor, was on duty at the main fire station, when he received a phone call from the Respondent who indicated he had had a serious quarrel with his girl friend. Respondent indicated she was drunk and had "trashed" his house and he needed to stay at home to insure his possessions were not ruined. Respondent's actual request was for a personal day off, and when Mr. Jennings indicated there was no such thing for City employees, Respondent asked for a vacation day. It is and has been, for as long as Respondent has worked with TSFD, Department policy that vacation pay can only be authorized by personnel above the grade of Lieutenant, and while the actual paper request may, at times, be signed after the fact, the authorization must be received prior to departure so that the Department has time to rearrange schedules to accommodate the absence. When Mr. Jennings advised Respondent of this, though evidence indicates he was aware of it, Respondent indicated he had had no sleep and as a result, Mr. Jennings suggested that Respondent take a day of sick leave. However, Mr. Jennings also reminded Respondent that in accordance with an order issued in writing by the Fire Chief in 1979 to the effect that requests for sick leave must be called in between 6 and 6:30 am of the day in question, prior to the start of the duty day, he would have to call in during the prescribed time to arrange for his sick leave. Though a Lieutenant can take the information, he does not have the authority to approve the leave. As a matter of fact, however, bona fide sick leave, called in in conjunction with the Chief's order, at an appropriate time, is never disapproved. Respondent did not call in between 6 and 6:30 am on April 18 to request sick leave as he had been instructed to do by Lt. Jennings. Mr. Lopes, also a fire fighter, who was scheduled to work on the same shift, arrived at approximately 6:50 that morning. When he spoke to Lt. Jennings to ask where he would be assigned, Jennings advised him that Respondent had not come in and Lopes would fill his slot. Jennings told Lopes what Respondent had told him concerning the house and like matters. At that point, Lopes advised Mr. Jennings that Respondent did not own the house where he was living nor was he the prime tenant. To verify this, Jennings telephoned Respondent at home at approximately 7:05 am. When Respondent answered the phone and Jennings asked why he had not reported for duty, Respondent indicated that he intended to take a sick day. Jennings reminded him that he had not called in properly and told him that if he took the time off, there would be repercussions. According to Jennings, Respondent did not seem concerned about that possibility, replying something like, "Oh well, whatever." Lt. Jennings logged this call in and reported the situation to his relief, Lt. Parker, the incoming shift lieutenant. He also discussed the matter the following morning with Assistant Chief Carr and at Carr's request, submitted a written statement of what had happened. According to the City regulations, sick leave, such as was requested by Respondent here, can be used for situations where the employee himself is sick or disabled; where the employee has an appointment with a physician or dentist; where the employee in under medical quarantine; and as a result of a death in the immediate family of the employee, in which case, only four days leave are authorized. Girl friends are not included within the definition of "immediate family." In the opinion of Mr. Carr, sick leave is not authorized for circumstances such as were described by Respondent in his reasons for not coming in. Under the terms of the City regulation, taking a sick day for a reason not within the above-described categories, constitutes grounds for discipline. When Respondent came to work on April 21, 1988, Chief Carr called him in and asked for an explanation of why Respondent had failed to report for duty on April 18. In response, Respondent told him the same story he had related to Lt. Jennings. In the course of their conversation, Carr advised Respondent that he, Respondent, knew from prior incidents that sick leave was not appropriate under these circumstances. Respondent replied that his girl friend was sick and he was concerned about her safety, and showed Carr a copy of the police report regarding the incident on April 18 which reflected that she was highly intoxicated. Carr advised Respondent that the circumstances did not justify or authorize sick leave, and that action would be taken to terminate him from employment. With that, Respondent left. After Respondent departed, Chief Carr reviewed his personnel records in detail and saw the number of sick days Respondent had taken since he began work with the Department, as well as his prior disciplinary record. Respondent's personnel record shows that in the years he has been an employee of the City, he has taken 44 sick days accounting for 1,056 hours of sick leave. He then prepared a memorandum outlining it which he forwarded to the City personnel director who concluded that termination was appropriate. Respondent's personnel records reflect the following actions: Memorandum 7/82 from Respondent's shift leader indicating he arrived 2 hours 9 minutes late for work. When questioned, he related his alarm did not go off due to a possible power failure. Memorandum 8/19/82 from Respondent's supervisor reflecting he was again late for work by 1 hour 45 minutes. On 2/7/83, Respondent called in for sick leave at 6:40 am, 10 minutes after the close of the call-in window. Respondent was given a written reprimand. On 3/23/83 Respondent reported for work at 7:11 am without calling in. He indicated he had a flat tire. He was ordered to take a one day suspension without pay. On 5/2/83 Respondent was found asleep on duty with earphones on his head, a violation of rule 5, Section 4, Civil Service Rules and Regulations of the City of Tarpon Springs. For this offense, Respondent was given a warning. On October 27, 1983, Respondent was warned and counseled regarding the prior discrepancies in his job performance including the incident involving his sleeping on duty and his 17 incidents of sick leave within a relatively short period. On October 7, 1985, Respondent was again counseled on his excessive use of sick days which then amounted to 26 despite a counseling on the matter in December, 1984 and in October, 1983. On February 7, 1986, Respondent was disciplined for calling in at 6:48 am, on February 4, 1986, outside the window for sick leave call in. He was given a written warning and a one day suspension without pay. On August 7, 1987, Respondent called in sick at 6:17 am which was within the parameters of the Chief's order. As is the Department's policy, however, the Lieutenant on duty called back several minutes later to check on the employee, and found that Respondent was not sick. In fact, he had left to go to the store to pick up a part for the truck on which he was working. Since this constituted an abuse of sick leave, he was given a three shift suspension without pay. On January 28, 1988, Respondent was counseled for poor report writing and advised to take greater care in doing so. Even after two warnings to this effect, his reports were still incorrect and incomplete and he was given a written warning. Chief Carr is of the opinion that Respondent's improperly using sick days, and his failure to call in to request sick leave on time, demonstrates a disregard for the City's leave program and regulations. After the incident on April 18, Chief Carr had a report prepared analyzing Respondent's sick leave from the beginning of his employment with the Department in 1982. This report showed a pattern wherein Respondent would work one shift, do overtime and exchange days with other fire fighters so he could work two days in a row, and thereafter take several sick days in a row. It was apparent from this analysis that Respondent was manipulating the sick leave process for his own benefit and the testimony of Ms. Evans that he was moonlighting with Medic-One, an ambulance company in Pinellas County, on some of the days he had called in sick, tends to support this conclusion. Under the terms of the Personnel Rules of the City of Tarpon Springs, a fire fighter earns 15 days sick leave per year, which, if not used, can be carried over to succeeding years. Chief Carr has not had a sick leave analysis prepared on any other employee within the Department even though, to his understanding, there are others who have taken off an equivalent number of sick leave days. To the best of his understanding, however, the other employees utilized their sick leave in an appropriate manner. Respondent has been employed by the Department since May, 1982 as a paramedic. He admits the incident on April 18. He went to bed at approximately 10 pm on the evening of April 17, 1988 because he had to go to work the next morning. He was awakened around midnight by his girl friend who was hitting him, throwing things around, and screaming. She was very intoxicated. Respondent tried to avoid her and called the police who tried to quiet them both down. After the police left at about 12:30 am, Respondent went to sleep on the couch. At approximately 1:30 am she started fighting with him again and to avoid any further dispute, he took some of his things, left the apartment and made the first call to Lt. Jennings. In that conversation, according to Respondent, he advised Jennings he was tired and upset and needed the day off but to his recollection, did not request any specific type of time off. At the time in issue, Respondent admits to having both sick leave and vacation time adequate for the following day accrued. According to Respondent, Jennings did not say Respondent could not have the time off nor did he say how it would be recorded. He also did not tell him to call back or to do anything else in order to secure approval for his time off. However, in light of the fact that Respondent had obviously been aware of the requirement to call in for sick leave within a certain time window, and in light of the uncontroverted evidence that he failed to do so, whether Jennings advised him to call in or not is irrelevant. After talking to Lt. Jennings, Respondent intended to spend the night on his boat. However, he was too upset and was unable to sleep and he merely sat on the boat until just before dawn when he went back to his apartment. He did not sleep at all that night. Jennings called at about 6:30 am. During the conversation, Jennings talked to him about whose apartment it was and Respondent, tired and upset, told Jennings that since he'd already given him the time off, he could categorize it any way he wanted. Respondent had to find a place to stay and put his things in storage and he was quite tired. He did not feel he could go to work, and since Jennings did not direct him to come to work, he did not do so that day. Respondent reported to work the next shift he was scheduled for and was called in for an interview during which he was advised he was being terminated for abuse of sick leave. He attempted to tell the Chief he had not requested sick leave and explain what had happened, but Carr advised him he was nonetheless going to recommend Respondent be fired. Respondent does not dispute his prior disciplinary record but denies ever having called in on sick leave when he was not really sick in order to work someplace else. The testimony of Ms. Evans outlining several days on which Respondent worked for Medic-One when he appears to have called in on sick leave shows otherwise. Respondent would not object to a use of vacation time for the absence on April 18, 1988. It appears from the evidence that had Respondent not had so extensive a history of prior disciplinary actions, his absence here may well have been charged to vacation leave to protect him. Vacation time, when properly authorized, can be used for any purpose whatever. However, it must be properly approved in advance by someone higher than a Lieutenant. Chief Carr admits that had Respondent called and spoken to him that night, he might have been given vacation leave. However, in this case, no consideration was given to allowing Respondent to take vacation time for this absence because of his prior record. In making his decision to terminate the Respondent, Chief Carr considered not only the Respondent's disciplinary record, but also his commendations. Nonetheless, the good in Respondent's file did not justify overlooking the bad and his judgement in this case is not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Jack Schenkel, be discharged from employment with the Fire Department of the City of Tarpon Springs. RECOMMENDED this 10th day of October, 3988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 10th day of October, 1988. APPENDIX TO RECOMMENDED ORDER 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 parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted and incorporated herein. 9 - 10. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. Accepted. 13. Accepted and incorporated herein. Irrelevant. Accepted. 16 - 19. Accepted and incorporated herein. 20 - 21. Accepted and incorporated herein. 22. Accepted. 23 - 36. Accepted and incorporated herein in substance but not in detail. 37. Accepted. 38 - 39. Accepted and incorporated herein in substance. 40 - 42. Accepted and incorporated herein. For the Respondent: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: NICHOLAS J. SARGENT, ESQUIRE SARGENT, REPKA, AND COVERT, P.A. 2963 GULF-TO-BAY BLVD., SUITE 320 CLEARWATER, FLORIDA 34619 ROBERT F. MCKEE, ESQUIRE 1724 EAST 7TH AVENUE TAMPA, FLORIDA 33605
The Issue The issue for determination is whether Intervenors are entitled to reasonable attorney fees and costs pursuant to Section 120.595, Florida Statutes (2003).1
Findings Of Fact Petitioner is an insurer and carrier within the meaning of Subsections 440.02(4) and 440.02(38), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(w).2 Petitioner is licensed in the state as a workers' compensation insurance carrier (carrier).3 Respondent is a state agency within the meaning of Subsection 440.02(3), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(b). In relevant part, Respondent is responsible for resolving reimbursement disputes between a carrier and a health care provider. Intervenors are health care providers within the meaning of Subsection 440.13(1)(h), Florida Statutes (2005), and Florida Administrative Code Rule 69L-7.602(1)(u). Each Intervenor is a health care facility within the meaning of Subsection 440.13(1)(g), Florida Statutes (2005). Intervenors seek an award of attorney fees and costs against Petitioner pursuant to Sections 57.105 and 120.595, Florida Statutes (2003). The proceeding involving Section 57.105, Florida Statutes (2003), is the subject of a separate Final Order entered on the same date as this Recommended Order. The scope of this Recommended Order is limited to Section 120.595, Florida Statutes (2003). Intervenors allege that Petitioner is the "non- prevailing adverse party" in an underlying proceeding and participated in the underlying proceeding for an "improper purpose" as the quoted terms are defined, respectively, in Subsections 120.595(1)(e)3. and 120.595(1)(e)1., Florida Statutes (2003). The underlying proceeding involves eight consolidated Petitions for Administrative Hearing. Petitioner filed each Petition for Administrative Hearing after Respondent determined Petitioner had improperly discounted the amount of reimbursement Petitioner paid for hospital services that Intervenors provided to eight patients from March 13, 2004, through February 11, 2005. From April 13 through May 23, 2005, Respondent issued separate orders directing Petitioner to pay the disputed amounts pursuant to Subsection 440.13(7), Florida Statutes (2005). From June 1 through June 21, 2005, Petitioner filed eight separate Petitions for Administrative Hearing. The eight petitions were subsequently consolidated into one underlying proceeding. Petitioner is the non-prevailing adverse party in the underlying proceeding. On December 8, 2005, Petitioner filed a Notice of Voluntary Dismissal in the underlying proceeding. On December 9, 2005, Intervenors filed their motion for attorney fees based on Section 120.595, Florida Statutes (2003). The formal hearing in the underlying proceeding was set for January 18, 2006. The ALJ amended the issue for the formal hearing to exclude the original reimbursement dispute and to limit the scope of the formal hearing to the fee dispute. The ALJ did so to avoid delay in the resolution of the proceeding. The fee dispute at issue in this proceeding includes only six of the original eight reimbursement disputes because Intervenors were not the medical providers in two of the original eight disputes.4 In the six reimbursement disputes involving Intervenors, Respondent ordered Petitioner to pay additional reimbursements in the aggregate amount of $54,178.52. Approximately $51,489.27 of the $54,178.52 in additional reimbursement involved inpatient hospital services provided to one patient.5 The remaining $2,689.25 in additional reimbursement involved outpatient hospital services in the emergency room.6 Subsection 440.13(12), Florida Statutes (2005), mandates that a three-member panel must determine statewide schedules for reimbursement allowances for inpatient hospital care. The statute requires hospital outpatient care to be reimbursed at 75 percent of "usual and customary" charges with certain exceptions not relevant to this proceeding. Notwithstanding the statutory mandate to schedule reimbursement rates for hospital inpatient services, the inpatient services at issue in the underlying proceeding were apparently unscheduled inpatient services. By letter dated April 13, 2005, Respondent ordered Petitioner to pay Intervenor, Holmes Regional Medical Center, Inc. (Holmes), an additional reimbursement in the amount of $51,489.27. The total reimbursement to Holmes was 75 percent of the charges that Holmes submitted to Petitioner for reimbursement.7 Respondent interprets Subsection 440.13(12), Florida Statutes (2005), to authorize reimbursement of both unscheduled inpatient hospital services and outpatient hospital services at the same rate. There is no dispute that Respondent reimburses unscheduled inpatient hospital services and outpatient hospital services at 75 percent of the "usual and customary" charges. The dispute in the underlying proceeding was over the meaning of the phrase "usual and customary" charges. Petitioner challenged the interpretation asserted by Respondent and Intervenors. Respondent and Intervenors contended that the quoted statutory phrase means Intervenors' usual and customary charges evidenced in a proprietary document identified in the record as the "charge master." Each Intervenor maintains its own charge master, and the information in each charge master is proprietary and confidential to each Intervenor. Petitioner asserted that the statutory phrase "usual and customary" charges means the usual and customary charges imposed by other hospitals in the community in which Intervenors are located. Petitioner maintains a data base that contains information sufficient to determine the usual and customary charges in each community. Petitioner did not participate in the underlying proceeding for an improper purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2003). Rather, Petitioner presented a good faith claim or defense to modify or reverse the then-existing interpretation of Subsection 440.13(12), Florida Statutes (2005). Petitioner had a reasonable expectation of success. The statutory phrase "usual and customary" charges is not defined by statute. Nor has the phrase been judicially defined. Respondent bases its interpretation of the disputed phrase on two agency final orders and relevant language in the Florida Workers' Compensation Reimbursement Manual for Hospitals (2004 Second Edition) (the Manual). The Manual is developed by the Florida Department of Financial Services (DFS).8 The Manual interprets the quoted statutory phrase to mean the "hospital's charges." However, after the effective date of the Manual in 2004, DFS developed a proposed change to the Manual that, in relevant part, interprets "usual and customary" charges to mean the lesser of the charges billed by the hospital or the median charge of hospitals located within the same Medicare geographic locality.9 The trier of fact does not consider the new interpretation of the disputed statutory phrase as evidence relevant to a disputed issue of fact. As Respondent determined in an Order to Show Cause issued on February 16, 2006, and attached to Intervenors' PRO, "what constitutes 'usual and customary' charges is a question of law, not fact." The ALJ considers the new interpretation proposed by DFS for the purpose of determining the reasonableness of the interpretation asserted by Petitioner in the underlying proceeding. The ALJ also considers the new DFS interpretation to determine whether the interpretation asserted by Petitioner presented a justiciable issue of law. Intervenors assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to initially explain its reduced reimbursement to Intervenors with one of the codes authorized in Florida Administrative Code Rule 69L-7.602(5)(n) as an explanation of bill review (EOBR). None of the EOBR codes, however, contemplates a new interpretation of the statutory phrase "usual and customary" charges. Intervenors further assert that Petitioner's improper purpose in the underlying proceeding is evidenced, in relevant part, by Petitioner's failure to respond to discovery. However, responses to discovery would not have further elucidated Petitioner's rule-challenge. Petitioner stated eight times in each Petition for Administrative Hearing that Florida Administrative Code Rule 69L-7.501, the DFS rule incorporating the Manual by reference: [S]hould be read to allow recovery of 75% of the usual and customary fee prevailing in the community, and not 75% of whatever fee an individual provider elects to charge. Respondent and Intervenors were fully aware of the absence of statutory and judicial authority to resolve the issue. Petitioner did raise at least one factual issue in each Petition for Administrative Hearing. Petitioner alleged that Respondent's decision letters ordering Petitioner to pay additional reimbursement amounts had no legal effect because Respondent acted before each provider requested and received the carrier's reconsidered reimbursement decision. The absence of a formal hearing in the underlying proceeding foreclosed an evidential basis for a determination of whether each provider in fact requested and received a reconsidered reimbursement decision before the date Respondent ordered Petitioner to pay additional reimbursements. In this fee dispute, Petitioner presented some evidence to support the factual allegation and thereby established the presence of a justiciable issue of fact. It is not necessary for Petitioner to present enough evidence to show that Petitioner would have prevailed on that factual issue in the underlying proceeding. If the letters of determination issued by Respondent were without legal effect, Petitioner would not have waived its objections to further reimbursement within the meaning of Subsection 440.13(7)(b), Florida Statutes (2005). A determination that Petitioner did, or did not, submit the required information is unnecessary in this proceeding. During the formal hearing in this proceeding, Petitioner called an expert employed by a company identified in the record as Qmedtrix. The testimony showed a factual basis for the initial reimbursement paid by Petitioner. It is not necessary for Petitioner to show that this evidence was sufficient to prevail on the merits in the underlying case. The evidence is sufficient to establish justiciable issues of fact in the underlying case. In this proceeding, Petitioner submitted some evidence of justiciable issues of fact in the underlying proceeding. Petitioner need not submit enough evidence in this fee dispute to show Petitioner would have prevailed on these factual issues in the underlying proceeding. Intervenors are not entitled to a presumption that Petitioner participated in this proceeding for an improper purpose in accordance with Subsection 120.595(1)(c), Florida Statutes (2003). Although Petitioner was the non-prevailing party in two previous administrative hearings involving the same legal issue, the two proceedings were not against the same prevailing hospital provider and did not involve the same "project" as required in the relevant statute. Intervenors seek attorney fees in the amount of $36,960 and costs in the amount of $2,335.37 through the date that Petitioner voluntarily dismissed the underlying proceeding. Absent a finding that Petitioner participated in the underlying proceeding for an improper purpose, it is unnecessary to address the amount and reasonableness of the attorney fees and costs sought by Intervenors. If it were determined that Petitioner participated in the underlying proceeding for an improper purpose, the trier of fact cannot make a finding that the proposed attorney fees and costs are reasonable. Such a finding is not supported by competent and substantial evidence. The total attorney fees and costs billed in the underlying proceeding were charged by six or seven attorneys or paralegals employed by the billing law firm. However, the fees and costs at issue in this proceeding exclude any time and costs charged by paralegals and include only a portion of the total fees and costs charged by the attorneys. The total amount of time billed and costs incurred in the underlying proceeding is evidenced in business records identified in the record as Intervenors' Exhibits 20-23. However, those exhibits do not evidence the reasonableness of the fees and costs billed by the attorneys.10 Either the testimony of the billing attorneys or the actual time slips may have been sufficient to support a finding that the attorney fees and costs are reasonable. However, Intervenors pretermitted both means of proof. Intervenors asserted that the time slips contain information protected by the attorney-client privilege. However, Intervenors neither submitted redacted time slips nor offered the actual time slips for in-camera review. Nor did Intervenors allow the attorneys to testify concerning unprivileged matters. The absence of both the testimony of the attorneys and the time slips is fatal. The fact-finder has insufficient evidence to assess the reasonableness of the fees and costs, based on the novelty and difficulty of the questions involved. Intervenors' expert opined that the attorney fees and costs are reasonable. The expert based her opinion, in relevant part, on her review of the actual time slips maintained by each attorney. However, Petitioner was unable to review the time slips before cross-examining the expert. In lieu of the actual time slips, Intervenors submitted a summary of the nature of the time spent by each attorney. The summary is identified in the record as Intervenors' Exhibit 2. Petitioner objected to Intervenors' Exhibit 2, in relevant part, on the ground that it is hearsay. The ALJ reserved ruling on the objection and invited each side to brief the issue in its respective PRO. The paucity of relevant citations in the PROs demonstrates that neither side vigorously embraced the ALJ's invitation. Intervenors' Exhibit 2 is hearsay within the meaning of Subsection 90.801(1)(c), Florida Statutes (2005).11 The author of Intervenors' Exhibit 2 summarized the unsworn statements of attorneys from their time slips and submitted those statements to prove the truth of the assertion that the time billed was reasonable. Intervenors made neither the attorneys nor their time slips available for cross examination.12 Even if the summary were admissible, the summary and the testimony of its author are insufficient to show the attorney fees and costs were reasonable. The insufficiency of the summary emerged during cross-examination of its author. The author is the lone attorney from the billing law firm who testified at the hearing. Q. What other information did you look at to decide what time to actually bill . . .? A. The information I used was the information from the actual bill. Q. If we look at the first entry . . . were you the person that conducted that telephone conference? A. No, I wasn't. Transcript (TR) at 510-511. Q. In other words, [the entries] go with the date as opposed to the event [such as a motion to relinquish]? A. That's correct. Q. So if I wanted to know how much time it took you to actually work on the motion to relinquish, I would have to look at each entry and add up all the hours to find out how long it took you to do one motion. Is that how I would do that? A. It would be difficult to isolate that information from this record, we bill and explain in the narrative what work is performed each day, and unless that was the single thing worked on for several days, there would be no way to isolate the time, because we don't bill sort of by motion or topic. . . . Q. Well, if I'm trying to decide whether the time billed is reasonable, wouldn't I need to know how much time was spent on each task? A. I'm not sure how you would want to approach that. . . . Looking at this document, it does not give you that detail. It doesn't provide that breakout of information. Q. Is there a way for us to know who you spoke with on those entries? A. The entry . . . doesn't specify who participated in the conference. I don't recall what the conference entailed . . . . And many of these entries are from months ago, and I can't specifically recall on that date if I was involved in a conference and who else might have been there. . . . And so my guess is where the conference is listed on a day when lots of activity was performed on behalf of the client, most of it in this case was research. TR at 516-521.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the motion for attorney fees and costs. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2006.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by Respondent dismissing its claim against Petitioner for recaptured depreciation. DONE and ENTERED this 19th day of August, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of August, 1982.
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service pursuant to the personnel rules of the Career Service System?
Findings Of Fact The Petitioner was an employee of the Respondent for more than five years. At all times relevant hereto, the Petitioner was employed by the Respondent. During the month of December, 1986, and the portion of January, 1987, prior to the date the Petitioner was removed from his position, the Petitioner was assigned to the Blountstown, Florida, road maintenance office. The Petitioner's immediate supervisor was Mr. Gustavev Goodwin. Mr. Goodwin was an HMT-3 with the Respondent and supervised a maintenance crew of three men, including the Petitioner. Mr. Goodwin was the Petitioner's immediate supervisor. Mr. Lloyd Blackburn, a Highway Maintenance Supervisor with the Respondent, was Mr. Goodwin's immediate supervisor. Mr. Blackburn supervises all crews operating out of the Blountstown office. The Petitioner and his crew worked a 10-hour day, 4 days a week. Mr. Goodwin prepares a weekly crew report on a daily basis. Mr. Goodwin records the hours a crew member worked or, if a crew member was not present, Mr. Goodwin notes the absence and the reason for the absence. Mr. Blackburn transfers the information recorded on the weekly crew reports to timesheets which are used for payroll purposes. If approval of a request for leave is required, employees are required to report to their crew supervisor or Mr. Blackburn. The Petitioner would have been required to obtain approval of leave from Mr. Goodwin or Mr. Blackburn, if prior approval had been required. In cases of sick leave, employees were expected to call by telephone on the day of the illness or injury and inform Mr. Blackburn. Mr. Blackburn was at the office each work day in the morning before the crews completed fueling their trucks and departed for the day. Mr. Blackburn was then out of the office during most of the remainder of the day. During the last week of December, 1986, Mr. Goodwin, the Petitioner and the other members of Mr. Goodwin's crew were "bull skating" (joking and talking). The Petitioner told Mr. Goodwin in response to some comment, probably pertaining to the work that would be done the first week of January, 1987, that "I won't be here next week anyway. I be in the hospital." Although Mr. Goodwin did not remember the Petitioner having made these comments, the Petitioner and one of the crew members, Mr. Arthur Jackson, both testified that the comments were made. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that he could be absent from work during the first week of January, 1987. The Petitioner was absent from work during the first week of January, 1987 -- January 5, 6, 7 and 8, 1987. Neither Mr. Goodwin nor Mr. Blackburn were contacted on January 5-8, 1987, by the Petitioner or anyone on behalf of the Petitioner, about the Petitioner's absence. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that his absence on January 5-8, 1937, was approved. The Petitioner had obtained approval of annual leave prior to the period at issue in this case. The Petitioner had planned to go to the hospital on January 5, 1987, because of problems he has had with his legs, and to remain in the hospital for the remainder of the week. Because of the problems with his legs and his automobile, the Petitioner did not go to the hospital or see a doctor on January 5, 1987. On January 8, 1987, the Petitioner had a friend drive him to Panama City, Florida, where he remained under the care of Dr. Ernest G. Haslam, M.D., in the hospital, until January 12, 1987. Although the Petitioner does not have a telephone at his residence, Mr. Goodwin or Mr. Blackburn could have been contacted by Petitioner's wife, who works at Hardees, or by a friend. The Petitioner acknowledged receipt on April 14, 1983, of the Florida Department of Transportation Employee Handbook and his responsibility to review the handbook in detail and to request clarification, if necessary. On page 43 of the handbook it is provided that "[a]fter an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from Career Service ..." On page 22 of the handbook it is provided that "[i]f a medical appointment is necessary during work hours, you should obtain `approval, in advance, to use your earned sick leave." By certified letter from Allen Potter, Deputy Assistant Secretary of the Department, dated January 8, 1976, the Petitioner was informed that he was deemed to have abandoned his position with the Respondent and to have resigned from the Career Service because of his absence from work during the first week of January, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration rule that the Petitioner, Albert T. Smith, has not abandoned his position with the Respondent, the Department of Transportation, and has not resigned from the Career Service. DONE and ENTERED this 12th day of May, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 12th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0450 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RD ." Petitioner's Proposed Findings of Fact The Petitioner has filed a letter dated April 10, 1987. The only proposed finding of fact contained in this letter concerns the question of whether the Petitioner told his supervisor, Mr. Goodwin, that he would not be at work during the period of time at issue in this case. The proposed finding of fact has been accepted in RD 10. Respondent's Proposed Findings of Fact Proposed Finding RD Number of Acceptance of Fact Number or Reason for Rejection 1 RD 1-4 and 8. 2 RD 5-7 and 9. 3 RD 10-11. 4 RD 11 and 13. The evidence did not prove that the Petitioner had obtained prior approval for sick leave subsequent to the period of time involved in this case. The evidence only proved that the Petitioner had on other occasions received prior approval of annual leave. 5 RD 19-20. RD 16 and 18. The evidence does not prove that the Petitioner got into a car and drove to town. RD 21. The Petitioner was not, however, "absent from his position without authorized leave ..." COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kay N. Henderson, P.E., Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, MS 58 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Mr. Albert T. Smith Route 1, Box 135, B 69A Blountstown, Florida 32424 =================================================================
Findings Of Fact Respondent was licensed to operate Lakeside Health Center, 2501 Australia Avenue, West Palm Beach, Florida, at all times material to this proceeding. It currently holds Skilled Nursing Facility License No. 238, issued by Petitioner. Pursuant to Subsection 400.111(1), Florida Statutes, such licenses must be renewed annually. Respondent's annual license expires on June 30. Prior to revision of this statute by the 1980 Legislature (Chapter 80-186), renewal applications were required 60 days prior to the expiration date. Thereafter, such renewal applications were required to be submitted to Petitioner 90 days prior to expiration. Additionally, the revised statute established a daily late charge equal to 50 percent of the preceding annual renewal fee. Respondent's application for its 1981-82 license renewal was due on April 2, 1981, which was 90 days prior to expiration. The application was actually filed on June 8, 1981, which is 67 days after the due date. Its previous renewal fee (1980-81) was $194. Fifty percent of this amount, $97, multiplied by 67 days equals $6,499, the amount of the late fee which Petitioner seeks to impose. Although it is not required by statute or rule to do so, Petitioner reminds licensees of their renewal obligation sufficiently in advance to preclude inadvertent delay. Additionally, Petitioner sent a form letter to all nursing home administrators on August 11, 1980, advising them of the revisions to Subsection 400.111(1), Florida Statutes. Petitioner's first notification to Respondent regarding the renewal deadline for its 1981-82 license was dated January 7, 1981. However, this letter was misaddressed and Respondent's denial of receipt is accepted. Petitioner's second notification was dated January 21, 1981, and was properly addressed. The letter was processed in due course by Petitioner's Licensing and Certification Office and was presumably received by the addressee, although Respondent denies this. Renewal letters were sent by ordinary mail at that time, but are now certified. Respondent argues that the January 21 letter misstated the due date as March 16, 1981, rather than the correct date of April 2. This was harmless error, however, and had no effect on Respondent's delay. Similarly, the requirement contained in this letter that renewals be filed with the local county health unit rather than directly with Petitioner in no way caused or contributed to Respondent's delayed filing. During the period when license renewal should have taken place, Respondent was experiencing changes in its administration and overlooked the renewal requirement. An interim administrator telephoned Petitioner's Jacksonville office in November, 1980, to inquire about renewal, and was told the forms would be finished automatically prior to the due date. This was the purpose of Petitioner's January 7 and January 21 letters, which Respondent denies receiving. Petitioner's third letter, dated May 22, 1981, intended to be a further reminder, was received and acted on by Respondent, prior to expiration of its 1980-81 license. By then, however, the $6,499 penalty had accrued.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing Respondent a late fee of $6,499 on the basis of its delay in applying for renewal of its license to operate a skilled nursing facility for the period beginning July 1, 1981. DONE AND ENTERED this 8th day of March, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1982. COPIES FURNISHED: Robert P. Daniti, Esquire Licensure and Certification Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mark P. Lang, Esquire, and Stephen W. Pickert, Esquire DEMPSEY AND SLAUGHTER, P.A. Suite 610, Eola Office Building 605 East Robinson Street Orlando, Florida 32801
