The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . Respondent responded to the question by checking the box marked "NO." Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows: DISORDERLY CONDUCT POSSES/DISPLY SUSP/REVK/FRD DL LICENSE SUSP OR REVOKED2 PERS/INJ/PROT/INS REQUIRE FAIL CHANGE ADDRESS/NAME (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's counsel spoke with Respondent, and suggested that she try and secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.) Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows: Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing. There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident. Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
The Issue Whether the agency's definition of the term "dry and measurable" as used in HRS bid documents is an unpromulgated rule which cannot be used as a basis for the agency's decision to reject the Petitioner's response to a bid proposal in Lease Number 590:1975. Whether the agency's requirement that a building be "dry and measurable" before a bid is accepted is an invalid exercise of delegated legislative authority.
Findings Of Fact In 1988, the Respondent HRS made the determination that it would not exercise its option on leased space owned by the Petitioner, Mr. Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. HRS included Mr. Dyess in its solicitations. He was sent a bid package which contained all of the bid documents for the bid referred to as Lease Number 590:1975. Page five of the document in the bid package known as HRS Facilities Services Form RO3-87, requires prospective bidders in Lease Number 590:1975 to contact Michael J. Sedgwick if they have any questions about the interpretation of the bid specifications. The document is silent on the questions of whether the written or oral representations made by Mr. Sedgwick are binding upon the agency, or whether the prospective bidder may contest the interpretation. A bidders' conference was held on April 26, 1988. During the conference, Mr. Sedgwick was questioned about the agency's interpretation of the term "dry and capable of being physically measured." Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for HRS in Tallahassee, and obtained the following definition: "Dry and measurable consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. This clarification or interpretation of the bid specification was not reduced to writing and sent to all prospective bidders, as required by HRS Facilities Form RO3-87. The Petitioner timely submitted a bid in Lease Number 590:1975. This bid was rejected by HRS because the building was not "dry and measurable", as defined by the agency, on the date of the bid opening. The definition of the term "dry and measurable," as set forth above, has been developed by HRS for use within the agency. It is an unwritten policy which is universally applied by the agency in all of its reviews of bid proposals submitted by bidders for building leases. This unwritten policy has been in effect for seven and one half years. A definition of the term "dry and measurable" is not set forth in the bid documents. A prospective bidder is encouraged by the bid documents to seek interpretations of definitions within the documents from the project contact person. In this case, the contact person was Mr. Sedgwick. No other basis was given to Mr. Dyess for the agency's rejection of his bid in Lease Number 590:1975.
The Issue The ultimate issue for determination is whether the Department of Environmental Protection should award attorney's fees and costs to G.E.L. Corporation pursuant to Section 120.595, Florida Statutes (2002).
Findings Of Fact At all times material hereto Petitioner was an inmate incarcerated at Union Correctional Institution within the custody and control of the State of Florida, Department of Corrections. Respondent stipulated at final hearing that Petitioner has "standing" to maintain the rule challenge proceeding. The parties also stipulated that the rule under challenge in this proceeding is a rule adopted by Respondent in accordance with the settlement reached in a previous administrative rule challenge proceeding in which Petitioner was a party. The parties further stipulated that ". . . inmates within the Respondent's care enjoy meaningful access to the courts." There are presently approximately 2,500 inmates incarcerated at Union Correctional Institution. There is one Xerox machine located in the law library at Union Correctional Institution, and the librarian has two inmate clerks assigned to assist in the operation of the library. There is insufficient money in the library budget to fund either additional copying machines or additional personnel to assist in copying materials other than those authorized under Respondent's rule.
The Issue Whether Petitioner's Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule (Petition) should be dismissed on the ground that the "challenged rule in this proceeding has been effectively repealed by the Florida Legislature by Section 626.854(11), Florida Statutes, effective October 1, 2008," as requested by Respondent.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Dennis John Hujar, was an examinee on the certified residential contractor examination The test is prepared under the direction of and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 68 on the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his grade contending that question 19 was ambiguous. That prompted this proceeding. The examination in question was prepared by the National Assessment Institute and contains three specific areas of testing, including business and financial management. The latter section includes questions on business law. Each item or question is drafted by a committee made up of representatives of the Department, Board and construction industry. After being drafted, the question is reviewed by the Department and Board for accuracy and content. However, the business law questions are not reviewed by attorneys prior to their use. Question 19 was a business law question having a value of two points on an examinee's overall score. The parties agree that if Hujar had received two additional points he would have passed the examination. Question 19 was designed to ascertain if the candidate could differentiate between a licensed and unlicensed contractor, the significance of that distinction, and the circumstances under which the recovery of profit and supervisory costs would be allowed. The question contained four possible answers, (a), (b), (c) and (d), one of which was a "good detractor" for the examinees. The correct solution was based on reference material contained in section 2.10 of the Florida Construction Law Manual, a copy of which has been received in evidence as hearing officer exhibit 2. As is pertinent here, that section provided as follows: Where a contractor or subcontractor has no license and enters into a contract, the contract is void for illegality. (citation omitted) The unlicensed contractor is not permitted to recover for lost profit. However, where work has already been done, the courts have allowed recovery on the basis of quantum meruit, but still deny recover of lost profit and cost of supervision. (citation omitted) In a case where the principal of a corporation was licensed as a general contractor for 17 years, but the corporation owned by the principal was not so licensed, a California court held that there was substantial compliance with licensing so as not to deny recovery of sums due. (citation omitted) Any person who is not licensed may not be considered as a lienor and may not have a mechanic's lien. (citation omitted) Because of security and confidentiality constraints, the challenged question cannot be repeated verbatim herein. It is suffice to say that the problem posed a hypothetical situation involving a state licensed general contractor who utilized an out-of-state (or unlicensed) subcontractor for site work on a Florida project. After the subcontractor completed site work of a specified value, the initial draw request was submitted to the owner for reimbursement of that cost and a reasonable profit. A second invoice for site work was then submitted to the Florida contractor but not the owner. At the same time, the owner learned of the subcontractor's unlicensed status and halted work on the project. The question asked the amount of money that the owner would "most likely (be) liable for at the time of the due date for the initial draw." According to the answer sheet received in evidence as hearing officer exhibit 1, the owner was liable for the initial draw request at that time, including allowable overhead, but did not owe for the cost of the second invoice not yet submitted to him by the contractor. This response was consistent with the cited reference material. Through his representative, petitioner claimed that the word "liable" most logically should be construed to mean the amount of money that the owner was ultimately liable to pay on the project although not necessarily at that point in time. Under this theory, the owner would have been responsible for a dollar amount at least equal to the contractors's cost in the initial draw plus the second but not yet submitted invoice for completion of the site work. If such an interpretation of the question was valid, petitioner's answer would have been correct. In this regard, it is noted that although there is no testimony as to the response given by Hujar on this question, it may be reasonably inferred that his answer was the same as that suggested by his representative. Koning contended further that in order to make correct the Board's response, the question should have asked for the owner's liability "at that time", thereby denoting that the ultimate liability was not in issue. It is noted that petitioner's representative is a licensed general, plumbing, roofing and underground utilities contractor and teaches the law manual as a preparatory course for the state examination. Petitioner is a former student. Respondent's consultant, George Bruton, who is a licensed general contractor and assists in the preparation of examination questions, considered the question to be clear and unambiguous. According to Bruton, the question required a student to recognize that 100% of a subcontractor's invoice plus allowable overhead are due and payable in full at the time of the first draw. However, because the owner had not yet been invoiced for the remaining amount of site work, he would not be liable for that amount. Bruton discounted petitioner's suggested answer as being nonresponsive on the grounds the words "ultimate liability" did not appear in the question, and petitioner was assuming a condition not called for in the question. Since the question did not use the words "ultimate liability", and petitioner's interpretation is not the most reasonable one, it is found that the question was not so "substantially misleading and insufficient" as to warrant the invalidation of the question or to justify a different response.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the examination. DONE and ENTERED this 26th day of October, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 26th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4313 Petitioner: 1-2. Used in finding of fact 2. Used in findings of fact 2 and 4. Used in preliminary statement and conclusions of law. Used in preliminary statement and finding of fact 8. Used in finding of fact 7. Rejected since it can be inferred that petitioner's response was choice c. Respondent: Respondent's "summary of facts" has been treated as conclusions of law and therefore specific rulings have not been made. The document attached to the summary of facts is not of record and has accordingly been disregarded. COPIES FURNISHED: Mr. Robert Koning 8301 Joliet Street Hudson, Florida 34667 Mr. Dennis J. Hujar 1511 Brooker Road Brandon, Florida 33511 E. Harper Field, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue to be resolved in this proceeding is the amount of attorney’s fees to be paid by Respondent, Agency for Persons with Disabilities (“APD” or the “Agency”), to the Petitioners, G.B., Z.L., through his guardian K.L., J.H., and M.R.
Conclusions This matter is related to the promulgation of proposed rules 65G-4.0210 through 65G-4.027 (the “Proposed Rules”) by the Agency in May 2013 in its effort to follow the mandate issued by the Florida Legislature concerning the iBudget statute, section 393.0662, Florida Statute (2010). Petitioners challenged the Proposed Rules in DOAH Case No. 13-1849RP. The Proposed Rules were upheld by the Administrative Law Judge, but Petitioners appealed the Final Order to the First District Court of Appeal (the “Court”). The Court’s decision was rendered July 21, 2014. G.B. v. Ag. for Pers. with Disab., 143 So. 3d 454 (Fla. 1st DCA 2014). The Fee Order was entered by the Court on the same date. The Fee Order had been entered upon the filing of a motion for appellate attorney’s fees filed with the Court by Appellants/Petitioners. The motion set forth three bases for an award of fees, to wit: Section 120.595(2), Florida Statutes, which provides: Challenges to Proposed Agency Rules Pursuant to Section 120.56(2).– If the appellate court or the administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to s. 120.56(2), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency’s actions are “substantially justified” if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the appellate court or administrative law judge shall award reasonable costs and reasonable attorney’s fees against a party if the appellate court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney’s fees as provided by this subsection shall exceed $50,000. Section 120.595(5), Florida Statutes, which provides: Appeals.– When there is an appeal, the court in its discretion may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or that the agency action which precipitated the appeal was a gross abuse of the agency’s discretion. Upon review of the agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding. Section 120.569(2)(e), Florida Statutes, which provides: All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expense incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. The Court did not specifically address which of Petitioners’ stated bases for award of attorney’s fees was being relied upon when granting Petitioners’ motion. Petitioners assert that it must therefore be presumed that the Court granted the request for fees on the basis of all three of Petitioners’ bases. There is no other support for that presumption, as the Fee Order is silent on the issue. It could equally be presumed that only one of the bases was relied upon by the Court. Thus, a determination of the appropriate basis for fees is critical in the determination of the amount of fees to be awarded, as will be set forth more particularly below. The Fee Order establishes only that attorney’s fees are awarded, with leave for the parties to determine the appropriate amount or, failing to do so, obtain direction from an Administrative Law Judge on the matter. There is no issue as to whether Petitioners are entitled to fees or costs, only the amount to be awarded. DOAH has jurisdiction over the parties and the subject matter of this proceeding under the August 6, 2014, Mandate of the First DCA, and under section 120.595(2). Although it is herein determined that section 120.595(2) is the appropriate provision to be considered for fees in this case, each of the other statutory sections argued in Petitioners’ motion for fees will be addressed nonetheless. Section 120.595(5) If section 120.595(5) is to be the basis for fees, it must be shown that Respondent is guilty of a “gross abuse” of its discretion. “Gross abuse” is not defined in statute. As stated by the Court in Allstate Floridian Insurance Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 302 (Fla. 2d DCA 2004), “The troublesome nature of our review here is the admittedly high ‘gross abuse of discretion’ standard. . . . However, we have no definition of what a ‘gross’ abuse of discretion includes or how it differs from an abuse of discretion. We can only assume that it is more egregious than a typical abuse of discretion.” The Court cited Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), in which the Supreme Court iterated that if reasonable men could differ on an issue, there was no abuse of discretion to act one way or the other. Other courts, looking at the issue of “abuse of discretion” in administrative matters, have struggled with a definitive description or definition. In Citizens to Preserve Overton Park, Inc., et al. v. Volpe, Secretary of Transportation, 401 U.S. 402; 91 S. Ct. 814; 23 L. Ed. 2d 136 (1971), the Court was trying to determine whether the Transportation Secretary had acted within his discretion. The Court decided it “must consider whether the decision was based on clear error or judgment. [citations omitted] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.” Id., at 416. And, as found by another Court, whether an act is arbitrary, capricious, or an abuse of discretion is “far from being entirely discrete as a matter of the ordinary meaning of language. . . . Rather than denoting a fixed template to be imposed mechanically on every case within their ambit, these words summon forth what may best be described as an attitude of mind in the reviewing court one that is ‘searching and careful’ . . . yet, in the last analysis, diffident and deferential.” Natural Res. Def. Council, Inc., et al. v. Sec. and Exch. Comm'n, et al., 606 F.2d 1031, 1034, U.S. App. DC (1979). In Ft. Myers Real Estate Holdings, LLC, v. Department of Business and Professional Regulation, 53 So. 3d 1158 (Fla. 1st DCA 2011), the Court awarded fees under section 120.595(5). In that case, the agency denied party status to the applicant for services. The Court said, “The position taken by the Division in the dismissal order, and maintained in this appeal, is so contrary to the fundamental principles of administrative law that, by separate order, we have granted Appellant’s motion for attorney’s fees under section 120.595(5), Florida Statutes.” The Court did not, however, define gross abuse of discretion any more specifically than that. Likewise, in Salam v. Board of Professional Engineers, 946 So. 2d 48 (Fla. 1st DCA 2006), the Court found that an agency’s intentional delay on acting upon a petition for formal administrative hearing warranted fees under the statute. The Salam Court did not further define gross abuse of discretion; it merely found that such abuse existed under the circumstances of the case. Gross abuse of discretion must, by definition, be more difficult to ascertain than simple abuse of discretion. Gross abuse implies that the Agency first believed its intended action was improper, yet engaged in the action despite that knowledge. That is, that the Agency acted intentionally to do something it knew to be wrong. Proof of such intent would be extremely difficult.1/ One need only look at the plain language of the Court’s opinion in the rule challenge appeal at issue here to see that there was no gross abuse of discretion. The Court ultimately held that although the Agency’s rules “directly conflict with and contravene the Legislature’s clear language” concerning development of an algorithm to assist with the distribution of funds to needy Floridians, “[W]e recognize the difficulty in adhering to the Legislature’s command to create an algorithm solely capable of determining each client’s level of need. Further, we accept that [Respondent] is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists.” G.B. et al., supra, 143 So. 3d 454, 458. Nothing in that language suggests that the Agency knew its proposed rule was improper or that it was doing anything intentionally wrong. Rather, the language of the Court’s decision indicates that Respondent was certainly attempting to exercise its discretion properly in the adoption of the Proposed Rules. Despite the Agency’s attempts to justify the rules both at final hearing and on appeal, the Court found that the Proposed Rules did not comport with the specific authorizing statute. That failure did not, ipso facto, establish that there was a gross abuse of the Agency’s discretion. Besides, upon hearing all the testimony and reviewing the evidence, the undersigned initially upheld the Proposed Rule; that, in and of itself, is some indication that the Agency’s efforts were legitimate. Thus, in the present matter, there is no rational basis for finding that gross abuse of discretion was involved in the Court’s award of attorney’s fees. Section 120.569(2)(e) As for section 120.569(2)(e), there is no evidence to support Petitioners’ contention that the proposed rule addressed in the rule challenge proceeding (DOAH Case No. 13-1849RP) was interposed for any improper purpose. The appellate court said, “[W]e accept that APD is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists.” Id. Clearly, the Agency did not act for an improper purpose; its best efforts to follow the Legislative mandate for an iBudget simply fell short. The Proposed Rules contravened certain specific requirements of the governing statute. In order to find a way to meet its mandate, the Agency made a Herculean effort, yet failed. Although Petitioners argue that an “improper purpose” was implied by the Court in the Fee Order, there is no substantive support for that position. Not only was APD’s attempt to find a “reasonable way” to discharge its responsibility found wanting by the Court, experts in the field who testified at the underlying hearing disagreed as well. There was no dispute about the intended purpose of the Proposed Rules, only as to how that intent was to be effectuated. There was never any dispute as to the Proposed Rules’ intended purpose; they were meant to find a way to serve the tens-of-thousands of people in need. There is nothing in any of the Agency’s actions in this case that would be even arguably described as “interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation.” This attorney’s fee section does not apply to the facts of this case. Section 120.595(2) Finally, in section 120.595(2), the Legislature has declared that if an appellate court or administrative law judge declares all or part of a proposed rule invalid, an order will be entered awarding reasonable attorney’s fees and costs (unless the agency demonstrated that its actions were substantially justified). The Court ultimately concluded that the proposed rules “directly conflict with and contravene the Legislature’s clear language.” That being the case, the Court seems to be finding that the Agency’s actions--promulgating the Proposed Rules--was not substantially justified, even if the Court did recognize the difficulty faced by APD in its efforts to comply with the statutes at issue. By process of elimination, section 120.595(2) is the basis for the Court’s award of attorney’s fees in the present case. That being so, the award is capped at $50,000. The Agency has conceded that Petitioners are entitled to at least $50,000 in fees, as well as costs in the amount of $41,609.65. There remains the issue of whether each of the four Petitioners is entitled to an award of the maximum fee. In their (singular) Petition for Administrative Determination of the Invalidity of Proposed Rules, the parties sought the following relief: That a Final Order be entered finding the Proposed Rules to be an invalid exercise of delegated legislative authority; and That Petitioners be awarded their reasonable attorney’s fees; and Such other relief as the Administrative Law Judge deems appropriate. That is, the relief sought by each of the Petitioners was the same: invalidation of the proposed rules. It cannot be argued that each Petitioner in his or her own right was seeking individual redress or damages. Collectively, they wanted the proposed rules invalidated so that they could return to the status quo concerning their benefits from the State. In fact, only one of the four Petitioners presented testimony at the underlying administrative hearing as to the impact of the Proposed Rules. There was no issue as to each Petitioner’s standing in the underlying administrative hearing. As stated by the Agency in its Proposed Final Order in that case: “Petitioners are each recipients of Medicaid Services under the DD waiver program and have been or will be transitioned to the iBudget system. Stip., pp. 23-24. Thus, Petitioners have standing to challenge the substance of the Proposed Rules.” Petitioners contend that each of the 25,000-plus recipients of benefits from the Agency could have filed petitions challenging the Proposed Rule. That is true. But in the rule challenge proceeding there were four petitioners (ostensibly representing those other 25,000), each seeking the same relief, i.e., invalidation of the proposed rules. And only one of those, K.L., testified at final hearing in the underlying rule challenge proceeding. Thus, there is no justification for an award of fees to each of the Petitioners under section 120.595(2). In light of the findings and conclusions above, and based upon the Order as stated below, the issue of contingency multipliers is not relevant to the discussion of fees herein. As a general rule in Florida, fees and costs incurred in litigating entitlement to attorney’s fees are collectible although time spent litigating the amount of the award is not compensable. See, e.g., State Farm Fire & Cas. Co. v. Parma, 629 So. 2d 830, 833 (1993). § 92.931, Fla. Stat.; Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995). Inasmuch as the Agency does not dispute entitlement to attorney’s fees, no fees for the fee case are warranted. The amount of fees sought in this administrative rule challenge by the Petitioners is, as set forth in their Proposed Final Order: $255,614.39 for the DOAH rule challenge proceeding; $154,662.35 for the appeal but also applied a contingent multiplier for a total of $309,324.70; $62,850.00 for the fee case but also applied a contingent multiplier for a total of $94,275.00; and $41,609.65 in taxable costs, for a total of approximately $660,000.00. While the amount of fees and costs allowed under the appropriate statute is well less than what Petitioners sought, it has been deemed legally sufficient by statute.
The Issue Whether Rule 34-5.029, Florida Administrative Code, is an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner, Bill Colon (Colon), resides in Sunrise, Florida. Colon is substantially affected by Rule 34-5.029, Florida Administrative Code. The parties have stipulated to this finding. Respondent, State of Florida Commission on Ethics (Commission), is a legislative agency governed in part by Chapter 120, Florida Statutes. Rule 34-5.029 provides: Insofar as it may be applicable to the complaint, if the Commission determines that a person has filed a complaint alleging a violation of Chapter 112, F. S. against a public officer or employee with a malicious intent to injure the reputation of such officer or employee and that such complaint is frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against in the representation of him before the Commission. The commission shall make a determination only upon a petition for costs and attorney's fees filed with the Commission by the public officer or employee complained against within 30 days following a dismissal of the complaint. Such petition shall state with particularity the facts and grounds which would prove entitlement to costs and attorney's fees. Staff shall forward a copy of said petition to the complainant by certified mail, return receipt requested. If the facts and grounds alleged in the complaint are not sufficient to state a claim for costs and reasonable attorney's fees, the Commission may dismiss the petition after an informal proceeding. If it appears that the facts and grounds may be sufficient, the Commission shall send a notice of hearing of the petition to both parties. In the discretion of the Chairman, the hearing may be held before the Division of Administrative Hearings, the full Commission, a single Commission member serving as hearing officer, or a panel of three Commission members serving as hearing officers; Commission hearing officers shall be appointed by the Chairman. The hearing shall be a formal proceeding under Section 120.57, F. S. and the model rules of the Administration Commission, Chapter 28, F. A. C. All discovery and hearing procedures shall be governed by the applicable provisions of Chapter 120, F. S. and Chapter 28, F. A. C. The parties to the hearing shall be the respondent and the complainant(s) who may be represented by counsel. The respondent has the burden of proving the grounds for an award of costs and attorney's fees by a preponderance of the evidence presented at the hearing. "Malicious intent to injure the reputation" may by proven by evidence showing ill will or hostility as well as by evidence showing that the complainant intended to bring discredit upon the name or character of the respondent by filing such complaint with knowledge that the complaint contained one or more false allegations or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics for Public Officers and Employees. Such reckless disregard exists where the complainant entertained serious doubts as to the truth or falsity of the allegations, where the complainant imagined or fabricated the allegations, or where the complainant filed an unverified anonymous tip or where there are obvious reasons to doubt the veracity of the information or that of the source of the information. If the petition is heard by the full Commission, the parties first shall present evidence going to, and the Commission may determine, the issue of whether the complaint was frivolous and without basis in law or fact. If the Commission finds that the complaint was not frivolous or was not without basis in law or fact, it shall direct staff to prepare an order complying with Section 120.59, F. S., denying the petition. The draft of that order shall be modified or adopted at the next Commission meeting. If the Commission finds that the complaint was frivolous and without basis in law or fact, it shall hear the evidence presented by the parties on the issue of whether the complaint was filed with a malicious intent to injure the reputation of the respondent. If the Commission finds that the complaint was not filed with a malicious intent to injure the reputation of the respondent, it shall direct staff to prepare an order complying with Section 120.59, F. S., incorporating its findings and denying the petition. A draft of that order shall be modified or adopted at the next Commission meeting. If the Commission finds that the complaint was filed with a malicious intent to injure the reputation of the respondent, it shall hear evidence presented by the parties on the amount of costs and attorney's fees to be awarded to the respondent and shall determine such amounts. The staff shall be directed to prepare an order complying with Section 120.59, F. S., incorporating its findings and granting the petition. The draft of the order shall be modified or adopted at the next Commission meeting. If the petition is heard by a hearing officer or a panel of hearing officers, evidence on all issues discussed above in (4) shall be presented by the parties at the hearing. The hearing officer(s) shall prepare a recommended order complying with Section 120.57, F. S., which shall be rejected, modified, or adopted by the full Commission. If the complainant fails to pay voluntarily such costs as may be assessed against him within 30 days following such finding by the Commission, the Commission shall so inform the Department of Legal Affairs, which shall bring a civil action to recover such costs. The Commission cites as specific authority for promulgating the rule as Article II, Section 8(f), (h), Florida Constitution and Section 120.53, Florida Statutes. The Commission cites as the law implemented by Rule 34-5.029 as Section 112.317(8), Florida Statutes.
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
