Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue The issue presented is whether Respondent, Roberto Rivera, M.D. (Dr. Rivera or Respondent), violated section 458.331(1)(b) and (kk), Florida Statutes (2012), as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Respondent is a medical doctor licensed in the State of Florida, having been issued license number ME 54313. Respondent did not dispute his status as a licensed medical doctor in this proceeding. Petitioner is the state agency charged with regulating the practice of allopathic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is also licensed as a medical doctor in the State of New Jersey. No evidence was presented regarding Respondent’s board certification or lack thereof. The licensing authority regulating the practice of medicine in the State of New Jersey is the New Jersey State Board of Medical Examiners (New Jersey Board), within the Department of Law and Public Safety, Division of Consumer Affairs. On January 7, 2013, the Hearing Committee of the New Jersey Board entered an Order of Temporary Suspension and Report of Hearing Committee to the Board (Committee Order). The Committee Order was issued nunc pro tunc to December 20, 2012, the date an evidentiary hearing was conducted before the Committee. The Committee Order temporarily suspended Dr. Rivera’s license to practice medicine, effective December 20, 2012, with the suspension to continue until such time as the New Jersey Board considered the record at its next scheduled meeting, and until further order of the New Jersey Board. The Committee Order also required Dr. Rivera to immediately cease the practice of medicine in New Jersey; to surrender his original medical license, biennial registration, New Jersey controlled dangerous substances (CDS) registration and Drug Enforcement Administration (DEA) registration to the New Jersey Board office pending further Order of the New Jersey Board; and to comply with the directives regarding licensees who have been disciplined, which were attached to the Committee Order and incorporated by reference. The Committee Order was subject to review and ratification by the full New Jersey Board at its meeting scheduled for January 9, 2013. The New Jersey Board considered the Committee Order at its meeting on January 9, 2013. At that time, the Board voted to ratify and adopt, in its entirety, the Committee Order, and on January 17, 2013, the New Jersey Board issued an Order Continuing Temporary Suspension of License (Continued Suspension Order). The Continued Suspension Order adopts, in its entirety, the Committee Order; continues the suspension of Dr. Rivera’s medical license in New Jersey pending review following completion of plenary proceedings in the matter; and stayed those further proceedings at the request of Dr. Rivera, until the resolution of the criminal charges pending against him following his arrest on November 17, 2012, in Ridgewood, New Jersey. The Committee Order, standing alone, does not constitute action by the licensing authority of another jurisdiction. However, the Committee Order as ratified by the Continuing Suspension Order does constitute action by the licensing authority of another jurisdiction. Respondent did not report either New Jersey action to the Florida Board of Medicine within 30 days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent has violated section 458.331(1)(b) and (kk), Florida Statutes (2012). It is further recommended that the Board suspend his Florida license to practice medicine until such time as his New Jersey license is unencumbered; and impose an administrative fine of $1,500. DONE AND ENTERED this 1st day of July, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2014.
Findings Of Fact Rule 23-21.03(9)(b) , Florida Administrative Code, the rule under challenge, contains a list of forms to be used by the Commission in parole grant-and-rescind types of proceedings. The particular form which is challenged is PCG-4.4, entitled "Special Commission Action." The Commission on September 7, 1983, extended petitioner's presumptive parole release date (PPRD) by utilizing form PCG-4.4. Petitioner and the Commission agree that invalidation of the challenged rule will not affect petitioner's PPRD. Petitioner does not challenge the method by which Rule 23-21.03(9)(b) , Florida Administrative Code, was promulgated.
Findings Of Fact On April 29, 1999, the Department filed an Administrative Complaint against Petitioner for allegedly violating several statutes regulating his conduct as an insurance agent in the State of Florida. Pursuant to his request for an evidentiary hearing regarding those allegations, that matter was referred to the Division of Administrative Hearings on June 10, 1999, and assigned DOAH Case No. 99-2593. On July 12, 1999, Petitioner filed with the Division of Administrative Hearings the subject Petition to Determine Invalidity of Administrative Rules, and on July 15 he filed his Amended Petition to Determine Invalidity of Administrative Rules. Petitioner challenges Rules 4-211.031(21)(e), 4- 211.031(24) through (27), 4-231.150, and 4-231.160, Florida Administrative Code. The Administrative Complaint charges Petitioner, inter alia, with violating Section 626.611(14), Florida Statutes. That Section provides for the mandatory revocation of licensure and appointment privileges based upon the commission of a crime involving moral turpitude. The statute does not define the term "moral turpitude" or direct the Department to do so. The Department has done so, however, in Rule 4-211.031(21)(e). Petitioner alleges that the Rule is an invalid exercise of delegated legislative authority in that it enlarges and modifies the statute, it exceeds the Department's rulemaking authority, it is vague and fails to establish adequate standards for the Department's decisions, and it vests unbridled discretion in the Department. In conjunction therewith, Rules 4-211.031(24) through (27), Florida Administrative Code, divide crimes into Classes "A" through "D" and contain lists of specific crimes. Those which the Department considers crimes involving moral turpitude based upon the definition contained in Rule 4-211.031(21)(e) are marked with an asterisk. Petitioner alleges these Rules are invalid exercises of delegated legislative authority because the Rule upon which they are based is invalid, because they are arbitrary and capricious as demonstrated by their internal inconsistencies and irreconcilable conflict with court decisions in the State of Florida, and because they enlarge and modify the statute they presumably implement. Petitioner asserts he is substantially affected by Rules 4-211.031(21)(e) and 4-211.031(24) through (27) in that the Administrative Complaint filed against him in DOAH Case No. 99-2593 charges him with entering a plea to aggravated battery, a crime designated by those Rules as involving moral turpitude. Rule 4-211.031(25) includes aggravated battery in its list of crimes involving moral turpitude. Petitioner also contends that two Rules covering the penalty phase of the Department's disciplinary process are invalid. Rule 4-231.150, Florida Administrative Code, provides for mandatory suspension in the event a licensee is found guilty in an administrative proceeding of violating Sections 626.611(14) and/or 626.621(8), Florida Statutes, two statutes Petitioner is alleged to have violated. Rule 4-231.160, Florida Administrative Code, sets forth specific aggravating and mitigating factors to be considered by the Department in assessing the penalty for violating statutes governing the conduct of insurance agents. As to Rule 4-231.150, Florida Administrative Code, Petitioner alleges that it is invalid because it requires mandatory suspension as the penalty for violating Section 626.621(8), Florida Statutes, but the statute provides that suspension is discretionary. Petitioner argues, therefore, that the Rule modifies or limits the statute and is an invalid exercise of delegated legislative authority. As to Rule 4-231.160, Florida Administrative Code, Subsection (1) sets forth 12 factors to be considered in assessing a penalty where Rule 4-231.150 is not involved, and Subsection (2) sets forth 8 factors to be considered in assessing a penalty where Rule 4-231.150 is involved. Both Subsections do, however, provide that any other relevant factors may be considered. Petitioner argues that Rule 4-231.160 is invalid because Subsection (2), which applies when criminal conduct is involved, does not contain the factors in Subsection (1), which contains far-broader factors, and is, therefore, much more limited and unfair. Petitioner further argues that the penalty schemes contained in Rules 4-231.150 and 4-231.160, calling for a mandatory suspension and offering an arbitrary and limited number of aggravating and mitigating circumstances are neither implied nor described by the pertinent statutes. The Rules, therefore, according to Petitioner, are invalid in that they substantially modify or limit the statutes at issue and are also arbitrary and capricious in their application of how disciplinary decisions should be made and what factors are to be considered. Petitioner further argues that Rule 4-231.160 is impermissibly vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Department by allowing for "other relevant factors" to be considered. The Department's Motion for Summary Final Order argues that Petitioner lacks standing to challenge the Rules and that the Rules are not invalid exercises of delegated legislative authority.
Findings Of Fact Mitchell is a highway construction contractor with its principal place of business located in Tallahassee, Florida. FDOT is the agency of the state of Florida which is responsible for the construction and maintenance of the roads designated as part of the State Highway System. On July 15, 1994, the parties entered into Contract No. 18,784 (contract) which required Mitchell to resurface the existing roadway, construct four (4) foot wide paved shoulders and perform other related work for $626,347.44 in State Project No. 59100-3512 (project) in Wakulla County, Florida. The contract incorporated by reference special provisions attached thereto and FDOT's Standard Specifications for Road and Bridge Construction (1991) (Standard Specifications). The contract required Mitchell to complete the project within 84 calendar days. Construction began on August 31, 1994, which was contract day one (1). In order to construct and pave the shoulders, Mitchell had to remove the top soil and stabilize the subgrade. After removing the top soil, Mitchell hauled borrow material to the project site. Mitchell spread the borrow along the roadside and mixed it with the existing sub-soil. Mitchell then attempted to attain a certain required density by compacting the shoulders. Mitchell hauled borrow to the project site from October 5, 1994, through October 8, 1994, and on October 13, 1994. Mitchell rolled the surface of the shoulders on October 18, and 20-22, 1994. The contractor was unable compact the subgrade to the required density. On or about October 22, 1994, FDOT refused to pay Mitchell for additional material to reestablish grade on the shoulders. From approximately October 24, 1994, through November 11, 1994, Mitchell remixed and compressed the subgrade soil in an unsuccessful attempt to stabilize the shoulders. From October 25, 1994, through November 7, 1994, Mitchell wrote at least four (4) letters to FDOT discussing the problems at the project site in achieving required density and stabilization of the subgrade on the shoulders. These letters are not a part of the record in this case. However, the hearing transcript from February 15, 1995, clearly shows Mitchell's position: (1) Plastic materials beneath the subgrade (unexpected conditions not contemplated under the contract) were causing a delay on the project and preventing Mitchell from achieving the required density and stabilization of the subgrade; (2) Mitchell would have to excavate the plastic material and haul in additional borrow to reestablish the grade of the shoulders before stabilization could be obtained; (3) Mitchell needed an extension of time in which to complete the project; and (4) Mitchell wanted FDOT to pay for the expenses (not covered under the contract) that Mitchell would incur in curing the problem. On or about November 11, 1994, Mitchell informed FDOT in writing that Mitchell was suspending work on the project. Mitchell suspended work without obtaining FDOT's approval as required by the contract. By letter dated November 14, 1994, FDOT responded to Mitchell's four (4) letters. FDOT's letter did not specifically deny each of Mitchell's requests but made it clear that Mitchell's claims were unsubstantiated. FDOT took the position that Mitchell created the problems with compaction by failing to follow FDOT procedures: (1) Prior to hauling in stabilizing material, Mitchell did not submit a sample of the existing on-site material so that a lime rock bearing ratio (LBR) could be established to determine how much, if any, stabilizing material would be needed to obtain the required LBR; (2) Mitchell did not submit samples or get FDOT's approval of the material used for stabilization before spreading and mixing it on the project site; (3) Mitchell did not sufficiently mix the material used for stabilization so that density could be obtained; (4) Soil samples of the material beneath the area being stabilized, to a depth of approximately three and one half feet, indicated that it was suitable for compaction; (5) The sources of borrow material used in attempting to stabilize the subgrade were not approved as required by the contract; (6) Mitchell added unapproved material, in excess of what was required, to the borrow material hauled to the project site. FDOT wrote this November 14, 1994, letter after investigating the problem and performing certain field and laboratory soil tests. On December 12, 1994, Stephen Benak, District Construction Engineer for FDOT, made a visit to the project site to conduct further investigation. Later that day the parties had a meeting. Mitchell again explained to FDOT that unexpected conditions at the job site were causing problems and preventing the contractor from obtaining density requirements on the subgrade. FDOT again informed Mitchell: (1) The unapproved borrow material that Mitchell previously hauled to the project site was unsuitable and causing the problem; and (2) Mitchell's proposal to under-cut (excavate and haul more borrow material) was a drastic cure and not compensable under the contract. Mitchell did not immediately return to work on the project. With credit for twenty-four (24) rain days, the contract performance time increased to 108 calendar days. Taking the rain days and intervening holidays into consideration, FDOT determined that the contract term expired on December 20, 1994. Mitchell did not return to work at the project site until December 23, 1994. By letter dated December 29, 1994, FDOT gave Mitchell notice of the agency's intent to declare Mitchell delinquent on the project and to suspend its Certificate of Qualification and that of all its subsidiaries. This letter states that Mitchell was making unsatisfactory progress on the contract because the contract time had expired and the work was not complete. The letter refers to section 8-8.2 of FDOT's Standard Specifications and Rule 14- 23, Florida Administrative Code. On January 12, 1995, Mitchell filed a Request for Formal Hearing without making an additional request for extension of contract time. This petition states: Mitchell Brothers has filed timely requests for extension of contract time due to the delays resulting from the lack of constructability and differing site conditions of the project. Therefore, the Department's issuance of the notice of delinquency is invalid. After receiving Mitchell's request for hearing, FDOT designated Tom Kinsella, Esquire, as counsel for the agency. By letter dated January 23, 1995, Mr. Kinsella referred Mitchell's request for a hearing to DOAH. The Hearing Officer issued a Notice of Hearing on January 27, 1995, setting this matter for hearing in DOAH Case No. 95-289 on February 8, 1995. In order to allow the parties sufficient time for discovery, the Hearing Officer subsequently rescheduled the case for hearing on February 15 and 16, 1995. The parties took depositions every day from February 2, 1995, to February 13, 1995. Bill Carpenter, FDOT's Project Engineer on the project at issue here, was the first deponent. Prior to Mr. Carpenter's deposition, Mr. Kinsella inquired as to whether there were any outstanding time requests. Mr. Carpenter assured Mr. Kinsella that FDOT had addressed and denied all outstanding time requests in FDOT's letter dated November 14, 1995. At the formal hearing in DOAH Case No. 95-289 on February 15, 1995, Mr. Benak testified on FDOT's behalf. On direct examination, Mr. Benak testified that Mitchell made no "proper" requests for contract time extensions. During cross-examination, Mitchell questioned Mr. Benak concerning Mitchell's letters written between October 25, 1994, and November 7, 1994. Initially, Mr. Benak testified that Mitchell's letters were not "formal" requests for extension of contract time. The Hearing Officer ruled that two of these letters contained preliminary requests for extension of contract time. Mr. Benak subsequently questioned whether Mitchell's letters were timely pursuant to section 8-7.3.2, Standard Specifications. Without resolving the issue of timeliness, Mr. Benak conceded that the delay was on-going and that the agency had never written to Mitchell requesting more specific information about the delay, i.e. all documentation of the delay and a request for the exact number of days justified to be added to the contract time. Therefore Mitchell was never required to submit a more formal request for contract time extensions. However, Mr. Benak never conceded that Mitchell's preliminary requests were pending at the time the agency issued its notice of intent to declare Mitchell delinquent or that the agency failed to follow its own procedures before issuing that notice. Mr. Benak maintained that the contract did not provide for extensions of contract time for delays due to the fault or negligence of the contractor. He testified that FDOT's letter dated November 14, 1994, effectively denied Mitchell's pending preliminary requests for time extensions and informed Mitchell that the delay was due to the contractor's fault or negligence. Accordingly, FDOT was not required to solicit further information from Mitchell before issuing the December 29, 1994, delinquency letter. As the hearing on February 15, 1995, progressed, it became apparent that the parties disputed a variety issues involving mixed question of fact and law. In ruling on an objection which is not at issue here, the Hearing Officer stated: * * It seems to me the more pertinent, you know, a much more pertinent area -- and we haven't addressed this in terms of the Department's procedures, that would start a request for extension of time, and it appears that the Department has never acted on that. And you've raised a very interesting matter, and that is under the rules, apparently if that process has been initiated, you can't go to delinquency, which means that this activity, this that they've tried to initiate, lacks the appropriate legal predicate. That's a good point. After the hearing in DOAH Case No. 95-289 recessed on February 15, 1995, Mr. Kinsella advised Mitchell's counsel that FDOT would withdraw the delinquency. Mr. Kinsella wanted to alert Mitchell that it was unnecessary for witnesses to attend the hearing the next day. When the hearing resumed on February 16, 1995, FDOT filed its Notice of Withdrawal of Notice of Delinquency and Motion for Relinquishment and Remand of Jurisdiction. The motion states, "The Department is now withdrawing it (sic) notice of intent to declare delinquincy without prejudice, it appearing that all of Mitchell Brothers, Inc., requests for additional time may not have been addressed by the Department." However, competent persuasive record evidence indicates that FDOT made this determination based on the Hearing Officer's prior rulings and statements during the hearing on February 15, 1995. Mr. Kinsella stated on the record: * * After the conclusion of the hearing yesterday on the basis of the matters that came up in terms of whether the preliminary requests for time extensions have been properly met by the Department and evaluated and addressed in the correspondence as pointed out by the Court, we went back and evaluated, and determined that we don't believe those have been fairly met and addressed by the Department, and that this delinquency was premature for that reason. Counsel for Mitchell did not object to the motion to relinquish jurisdiction but requested an opportunity to submit a proposed order. The Hearing Officer stated that Mitchell could file a motion to submit a proposed order and that FDOT would have an opportunity to respond to that motion. The Hearing Officer did not set a date certain for the filing of the posthearing motion but Mitchell's counsel stated that the motion would be filed in a very brief time, within a day or two. February 16, 1995, was a Thursday. The following Monday, February 20, 1995, Mitchell filed a Motion to Permit Submittal of Proposed Findings and for Entry of a Recommended Order, a proposed recommended order for the Hearing Officer's signature, and a Motion for Attorney's Fees. DOAH's Clerk docketed Mitchell's motion to submit proposed findings and the proposed recommended order in DOAH Case No. 95-289. The Clerk docketed Mitchell's motion for attorney's fees under DOAH Case No. 95-1096F. That same day, the Hearing Officer entered an Order Closing File which did not retain jurisdiction over any issue in DOAH Case No. 95-289. Subsequent relevant pleadings and procedures arising in the instant case between February 20, 1995, and June 14, 1995, are set forth above in the Preliminary Statement and incorporated herein. The record indicates that the parties were at an impasse when Mitchell suspended work on the project on or about November 11, 1994. After FDOT's November 14, 1994, letter and the meeting on December 12, 1994, the parties certainly were aware of each other's positions, and were deadlocked as to the reason for the delay in stabilizing the subgrade. The dispute between them involved multiple questions of fact and law which are not at issue here. FDOT's December 29, 1994, delinquency letter gave Mitchell what it was entitled to, i.e., a point-of-entry to challenge, in an administrative proceeding, FDOT's position that Mitchell created the conditions causing the delay in stabilizing the subgrade. FDOT had a reasonably clear legal justification for issuing that letter based on sections 8-7.3.2 and 8-8.2 of FDOT's Standard Specifications and Rule 14-23, Florida Administrative Code. The delinquency letter was not issued and subsequently filed with DOAH for an improper or frivolous purpose. As of February 15, 1995, the 165th calendar day of the project, Mitchell continued to work on the project which was only 36 percent complete and which FDOT had not conditionally accepted. Mitchell has incurred $44,408.50 in attorney's fees and $18,071.13 in cost in litigating DOAH Case No. 95-289 and DOAH Case No. 95-1096F. Mitchell is also obligated to pay $1,045.00 to Carolyn Raepple, Esquire, who testified concerning the reasonableness of the fees and costs that Mitchell incurred in DOAH Case Nos. 95-289 and 95-1096F. FDOT has presented no evidence to rebut the reasonableness of these fees and costs.
