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.
The Issue Whether Petitioner proved by clear and convincing evidence that she has been rehabilitated from her disqualifying offense(s), and, if so, would it be an abuse of discretion for the agency to deny her exemption application under section 435.07, Florida Statutes.
Findings Of Fact Agency for Health Care Administration ("AHCA") is the state agency required to conduct background screenings for employees who provide certain types of services related to health care under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing services to residents of a health care facility or under a license issued by Respondent. As such, Petitioner is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 2004, Petitioner was convicted of the felony offenses of grand theft and burglary, in violation of sections 812.014 and 810.02, Florida Statutes (2004) respectively, in Dade County, Florida, Case No. 132004CF030578C000XX. These offenses were used by the agency as the disqualifying offenses under chapter 435. Petitioner was subsequently convicted of felony grand theft in 2007, in violation of section 812.014, Florida Statutes (2007), in Broward County Circuit Court, Case No. 062007CF013247A88810. In 2013, Petitioner was convicted of theft in violation of section 812.014, Florida Statutes (2013), in Dade County, Florida, Case No. 132013CF0268560001XX. The criminal convictions in 2004 disqualified Petitioner and made her ineligible for licensure or to provide services in a health care facility licensed by Respondent. She was disqualified unless she applied for and received an exemption from AHCA, pursuant to section 435.07. In addition, Petitioner’s background check revealed that she was arrested in 1997 for Battery and Resisting Arrest; in 2009 for Petit Theft involving unemployment compensation, which was ultimately dropped; and in 2012 for retail theft. Petitioner initially submitted an application for an exemption to Respondent in accordance with sections 408.809 and 435.07 on June 9, 2017. She participated in a telephonic hearing to discuss her application conducted by Respondent on August 1, 2017. Respondent’s witness, Kelley Goff, a health services and facilities consultant for the Agency’s Background Screening Unit, testified that she was the analyst assigned to Petitioner’s case and attended the telephonic hearing on August 1, 2017. Respondent’s Exhibit R1-1 through R1-75, is AHCA's file for Petitioner’s exemption request. It contains: the exemption denial letter; internal agency notes; panel hearing notes from the August 1, 2017, teleconference; Petitioner’s criminal history; Petitioner’s exemption application; personal attestations; arrest affidavits; conviction records; probation records; court records; education records; and several letters in support of Petitioner’s requested exemption. After the telephonic hearing and discussion, Respondent denied Petitioner’s request for an exemption by letter dated August 4, 2017. Subsequently, Petitioner requested an administrative hearing. In making the decision to deny, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner and her explanations during the teleconference. Respondent also considered Petitioner’s other arrests and convictions, in addition to the disqualifying offenses. The history of Petitioner’s theft-related crimes and the recent 2012 and 2013 theft-related incidents were significant factors in Respondent’s decision to deny Petitioner’s application for exemption. The agency concluded that Petitioner was not particularly candid during the August 1, 2017, teleconference, and that some of Petitioner’s statements during the teleconference conflicted with the police reports and other documentation in Petitioner’s exemption file. This was true particularly with respect to the 2012 retail theft incident at Home Depot, which Petitioner attributed to actions by a client during the teleconference. During the telephone interview, Petitioner stated that she could not remember the arrests and/or convictions from the time period from 1997 through 2007. Although Petitioner had some positive letters of recommendation, she did not have anyone speak on her behalf during the telephonic discussion in August 2017. Based on Petitioner’s entire file and her responses during the teleconference, the agency concluded that Petitioner had not satisfied her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offenses. Goff testified that, while preparing for the hearing, she researched Petitioner’s 2007 criminal case and discovered that Petitioner still owed outstanding fines in that case in Broward County, and felt that Petitioner was not eligible to apply for an exemption until those fees were paid. During the final hearing Petitioner presented the testimony of her former client, Yohandra Sota. She testified that she had known Petitioner during the time of the 2012 incident of theft at Home Depot, that she was not with Petitioner during that time, and that she had never witnessed Petitioner involved in theft. Sota testified that Petitioner is a nice person who does not do bad things and has never fought, fussed, or threatened her. Petitioner testified on her own behalf and admitted that she has things on her record and is not happy with them. She explained that everyone does things that he or she does not necessarily have a choice over. Petitioner explained that she is asking for a second chance to get her life back on track and to get her life together. Petitioner explained that she was not aware of the outstanding fines and that when she went to Broward County Courthouse, they told her they could not find information on the case. Petitioner further explained that she is raising her three grandchildren and needs to provide for them and that she is unable to do that without a job. Petitioner stated that she is unable to work with her client because of this situation (the present disqualification). Petitioner explained that everyone makes mistakes and no one is perfect and that she had a rough childhood and had to raise herself. Petitioner then presented the testimony of her brother, Jamvar Thomas. He testified that he has seen Petitioner go through a lot of changes and that she has made some mistakes in her life. He felt that the fact that Petitioner asked for his help shows tremendous growth in her. Thomas testified that Petitioner is trying to put herself in a position so that she will not have to go back to her old habits and that she needs a second chance. Thomas stated that Petitioner has worked with Yohandra Sota for 15 years and helped Sota cope with her life. Thomas testified that helping people has helped Petitioner become a better person and that Petitioner has paid for her past mistakes and has come a long way. Thomas requested that Petitioner be given the opportunity to do the right thing and that granting the exemption would allow Petitioner to work in her field of expertise. Although Petitioner professed that she was remorseful for her criminal convictions and wants to move forward with her life, the undersigned is not persuaded by clear and convincing evidence that (1) she is rehabilitated from her disqualifying offenses, or (2) that it would be an abuse of discretion for the agency to deny the exemption.1/ The undersigned finds that under the facts presented Petitioner has failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 12th day of January, 2018.
The Issue Whether Petitioner, M.B. Doral, is entitled to attorneys’ fees and costs pursuant to section 120.595(4), Florida Statutes (2019); and, if so, the amount.
Findings Of Fact On December 21, 2018, Petitioner MB Doral filed a Petition Challenging Validity of Existing Rule 61A-4.020 and Determination Regarding Unadopted Rule, in DOAH Case Number 18-6768RX. On January 25, 2019, the undersigned entered an Order Granting Respondent’s Motion to Bifurcate and Stay Proceedings, which stayed MB Doral’s unadopted rule challenge pending the proposed rulemaking that would promulgate ABT Form 6017. On October 16, 2019, amendments to rule 61A-4.020 became effective, which promulgated ABT Form 6017. On November 6, 2019, the undersigned entered an Order Dismissing Unadopted Rule Challenge and Retaining Jurisdiction, which dismissed MB Doral’s remaining unadopted rule challenge and retained jurisdiction to consider a request for attorneys’ fees and costs, pursuant to section 120.595(4)(b). On December 3, 2019, MB Doral filed a Motion for Attorneys’ Fees and Costs (Motion), seeking an award of attorneys’ fees and costs incurred in the unadopted rule challenge pursuant to section 120.595(4)(b). The Motion alleges that MB Doral advised the Department, in writing on at least seven occasions prior to filing the rule challenge petition, and beginning on May 19, 2015, that the Department’s failure to adopt ABT Form 6017 constituted an unadopted rule. The Motion also alleges that the Department did not file a notice of rulemaking until January 28, 2019. The Motion further alleges that the Department has never alleged that the federal government required ABT Form 6017 to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds. On December 10, 2019, the Department filed its Response in Opposition to Petitioner’s Motion for an Order Awarding Attorneys’ Fees and Costs. On February 11, 2020, the Department filed a Notice of Filing Joint Stipulation for Attorneys’ Fees and Costs, which included the Joint Stipulation for Attorneys’ Fees and Costs. The Joint Stipulation states that the Department agrees to the entry of a final order assessing the sum of $7,500.00 for attorneys’ fees and costs in the unadopted rule challenge, which the undersigned bifurcated from the existing rule challenge in DOAH Case No. 18-6768RX, which is currently pending before the First District Court of Appeal in Case Number 1D19-0820. The Joint Stipulation further states that the parties agree that this Final Order should direct the Department to seek immediate approval for payment within 30 days of this Final Order, and that the undersigned retains jurisdiction to enforce the terms of this Final Order.
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.001, 33-3.006, 33-3.0025, 33-22.004(3)(A), 33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-4.002" and Internal Operating Procedure Number AG-91.51 were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules and IOP concerns the possession of contraband and punishment therefor. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 2, State of the Case and Facts, provides the following: 2. That the (Respondents) Rules as 33-29 et. seq. 33- 3.006, 33-3.0025, 33-22.0012 Code 3, s 3-12 is [sic] invalid, arbitrary, capricious, vague, delegation to exceed, modify, contravenes, the specific provisions of laws [sic] implemented, citation required by 120.54(7), Florida Statutes and 944.09(1)(A). This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in punishing the Petitioner for having contraband in his possession. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules and the IOP. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules or the IOP are unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rules and the IOP are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7190R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Legal Affairs, and the State Attorney of the Eighth Judicial Circuit, the Respondents in case number 91-7190R as Respondents and addresses his challenge to other rules, internal operating procedures and directives of the other named Respondents challenged in case number 91-7190R. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rules, the IOP or the other matters challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
Findings Of Fact The initial Petition for Administrative Review was filed on August 22, 1991. The Petition was signed by Donald Eugene Halpin and Jeffery Lynn Fowler. The Petition, which was purportedly also filed by Richard Edward Jackson, was not signed by Mr. Jackson. In the Petition Mr. Halpin and Mr. Fowler challenged Rule 33-3.04(9), Florida Administrative Code. The Challenged Rule provides, in pertinent part: . . . The return address of all outgoing mail must contain the inmate's committed name, identification number and institutional address. The institutional name in the return address must be spelled out completely with no abbreviations. It was alleged in the Petition that the Challenged Rule is "arbitrary or capricious in its application." The Petition also contained an allegation that the Challenged Rule provides "no legitimate or compelling purpose when weighed against its adverse effect on Petitioners and their family and friends." Throughout the Petition it was alleged that there are "less restrictive forms the Respondent could employ to accomplish [its] goal . . . ." In this regard, the Petition contains the following allegation: 11. Petitioners have no qualms with the Respondent informing those individuals they write that they are state correctional inmates. However, Petitioners do object to the manner in which Respondent implements this restrictive measure. There is a much less restrictive means to accomplish the same objective, i.e., letting individuals know they are receiving letters from state correctional inmates. As the rule stands now, it is arbitrary or capricious as applied to the Petitioners. No facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8)(d), Florida Statutes, were included in the Petition. Finally, the following relief was requested and the following statement was made in closing: WHEREFORE, Petitioners respectfully move the Division of Administrative Hearings to declare Chapter 33-3.04 to be arbitrary or capricious in its application. Furthermore, Petitioners reserve the right to proffer First and Fourteenth Amendment violations during any administrative hearings [sic] or motions for rehearing for appellate purposes. On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. On December 2, 1991, a pleading titled "Amended Petition for Administrative Review" was filed by Mr. Halpin and Blanche Moseley with the case number of this case identified as the case that the pleading was being filed in. Through the Amended Petition Mr. Halpin and Ms. Moseley attempted to initiate the following challenge: Petitioners, Donald E. Halpin and Blanche Moseley, file their Amended Petition for Administrative Review, pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 and 120.57, Florida Statutes, to challenge Rule 33-3.004, Florida Administrative Code . . . . . . . . 4. Petitioners file this action pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 (Halpin being a State Prisoner must utilize Section 120.56) and 120.57 (Ms. Moseley being a free citizen will utilize Section 120.57), Florida Statutes. Petitioners will allege Chapter [sic] 33-3.04, F.A.C., is vague, vest unbridled discretion in the agency, and is arbitrary or capricious in its application. Furthermore, Petitioner Moseley would allege Chapter [sic] 33-3.04, F.A.C., violates the First, Eighth and Fourteenth Amendment guarantees to the United States Constitution. It is further alleged under the "Conclusion" section of the Amended Petition that Ms. Moseley's challenge is based upon Section 120.54, Florida Statutes, although no proposed rule or rule amendment has been challenged in the Petition or Amended Petition. In support of the allegation that the Challenged Rule is vague, it is alleged in the Amended Petition that the Challenged Rule "does not set forth why the public must be protected, e.g., the types of crimes committed by inmates, the number of inmates who violated U.S. Mail regulations, and how other crimes were committed by inmates through U.S. Mail." In support of the allegation that the Challenged Rule vests unbridled discretion in the Respondent, it has been alleged in the Amended Petition that the Challenged Rule is only intended as punishment--by informing those who come in conduct with an inmate's mail that the mail is from someone who is in prison. Several allegations are also included in the Amended Petition concerning how Ms. Moseley's constitutional rights are being violated by the Challenged Rule. The Amended Petition is devoid of any alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule is invalid under Sections 120.54 or 120.56, Florida Statutes. Mr. Jackson and Mr. Fowler did not file an amended petition.
The Issue Whether the Petitioner is entitled to fees and costs pursuant to Section 120.595(4), Florida Statutes.
Findings Of Fact The Respondent is the state agency responsible for licensing and regulating skilled nursing homes in Florida pursuant to Chapter 400, Florida Statutes. At all times material to the underlying case, the Petitioner operated or controlled three licensed skilled nursing facilities: Harborside Healthcare-Pinewood, Harborside Healthcare-Sarasota, and Harborside Healthcare-Naples. In October of 2001, the Agency filed Administrative Complaints against the Petitioner's three facilities. As to each complaint the Agency relied upon its interpretation of Section 400.121(3)(d), Florida Statutes. The Agency's interpretation of the statute went beyond the plain and unambiguous language of the law. Moreover, such interpretation had not been promulgated by rule. If the interpretation was intended to be the policy of the Agency, the implementation of the policy was not authorized by the statute. The Petitioner pursued three legal strategies: it filed an injunction proceeding in circuit court, a petition to challenge the unpromulgated rule, and vigorously defended the administrative actions filed against its facilities. In so doing, the Petitioner incurred legal expenses and costs necessitated by the Agency's implementation of a policy that had not been established through rule-making procedures. Petitioner's rule challenge alleged that the Agency had failed to follow any rule-making procedures; had enlarged, modified, and contravened the specific provisions of the law; and had implemented a policy that was arbitrary and capricious. Due to the severity of the penalties the Agency sought to impose against the Petitioner, the damage to its reputation in the communities it served, and the resident fear and uncertainty at the facilities, the Petitioner sought and was granted an expedited hearing on the rule challenge. The "Wherefore" clause of the Petitioner's rule challenge clearly stated that Petitioner sought an award of attorneys' fees and costs pursuant to Section 120.595, Florida Statutes. Petitioner had retained outside counsel to pursue each of its legal strategies. On October 31, 2001, a Final Order was entered in the underlying case that directed the Agency to cease and immediately discontinue all reliance on the policy that had not been promulgated through rule-making procedures. That Final Order has not been appealed. The Final Order did not retain jurisdiction for purposes of addressing the Petitioner's request for attorneys' fees and costs. The instant case was opened when the Petitioner filed a motion for attorneys' fees and costs subsequent to the entry of the Final Order in DOAH Case No. 01-3935RU. The matter was assigned a new case number as is the practice of the Division of Administrative Hearings in ancillary proceedings. Accordingly, the instant case, DOAH Case No. 01-4283F, was designated a "fee" case (hence the F at the end of the case number). The initial order entered through the DOAH clerk's office erroneously designated that the fees were sought pursuant to Section 59.11, Florida Statutes. Nevertheless, after the time for appeal of the Final Order (DOAH Case No. 01-3935RU) had elapsed, the matter was scheduled for final hearing. Carole Banks is an attorney employed by the Petitioner as an in-house counsel and director of risk management for the three facilities identified in this record. Ms. Banks is also a registered nurse and has been a member of the Florida Bar since April of 1998. Ms. Banks receives a salary from the Petitioner and is required to perform duties typically associated with her full-time job. Due to the filing of the Administrative Complaints against the facilities, Ms. Banks was required to expend additional time to assist outside counsel to defend the facilities. A portion of that time was attributable to the rule challenge case (DOAH Case No. 01-3935RU). Based upon the testimony of this witness and the exhibits received into evidence it is determined Ms. Banks expended 19.8 hours assisting in the prosecution of the rule challenge case. An appropriate rate of compensation for Ms. Banks would be $150.00 per hour. There is no evidence, however, that the Petitioner was actually required to pay Ms. Banks overtime or an appropriate rate of compensation for her additional work. K. Scott Griggs is an attorney employed by the Petitioner. Mr. Griggs serves as vice president and General Counsel for the Petitioner and is located in Massachusetts. Mr. Griggs did not testify, was not available to explain his time-keeping records, and none of the exhibits in this cause indicate how Mr. Griggs is compensated for his services or what his specific duties entail. While it is certain Mr. Griggs assisted counsel in the prosecution of the underlying case, without relying on hearsay, no determination as to the amount of time spent and the hourly rate that should be applied to such time can be reached. In order to fully protect the Petitioner's interests and those of its residents, the Petitioner retained outside counsel in the underlying case. The law firm of Broad & Cassel was hired to defend the administrative actions, seek injunctive relief, file the underlying case, and pursue other administrative remedies to assist the client. By agreement, Petitioner was to pay the following hourly rates: partners were to be compensated at the rate of $245.00 per hour, associates were to receive $175.00 per hour, and paralegals were entitled to $90.00 per hour. In this case, four partner-level attorneys from Broad and Cassel expended time in furtherance of the client's causes. After reviewing the time records and testimony of the witnesses, it is determined that the partners expended at least 172.6 hours associated with the underlying rule challenge. Additionally, an associate with the Broad & Cassel firm expended not fewer than 12.1 hours that can be directly attributed to the rule challenge case. Additional hours expended contributed to the success of the rule challenge. The Petitioner also incurred costs and expenses associated with the rule challenge. A paralegal expended 4.6 hours (with a $90.00 per hour rate) making copies of the documents used at the hearing. Other costs included court reporter fees, transcripts, telecopy charges, and expert witness fees. It is determined that the Petitioner has incurred $5819.15 in recoverable costs associated with this case and the underlying rule challenge. The hourly rates sought by the Petitioner are reasonable. The time and labor expended by the Petitioner to vigorously protect its legal interests was reasonable given the severity of the penalty sought by the Agency and the circumstances faced by the client. The Petitioner benefited from the efforts of counsel. Due to the time constraints and immediate ramifications faced by the Petitioner, special time and requests were made of the attorneys performing the work for the underlying case. In some instances, the attorneys were required to devote an extensive amount of time to address the client's interests to the exclusion of other work. This was the first time the Broad & Cassel firm had been retained to represent the client. As a result, the attorneys did not have the benefit of a long-term understanding of the facilities and the client's needs. The Broad & Cassel firm and the attorneys assigned to this matter have considerable experience and demonstrated considerable skill, expertise, and efficiency in providing services to the client. Had the Petitioner not prevailed, its ability to honor its hourly agreement with counsel may have been jeopardized. The Agency's expert recognized the difficulties presented by the case and opined that a proper fee would be $42,908. Such amount did not include attorney time spent in preparing for, conducting the fee hearing, or post-hearing activities. Such amount did not cover the amounts depicted in the billing statement from the Broad & Cassel firm. The Petitioner was required to retain expert witnesses to address the fees sought. The calculation of attorney's fees in this cause is complicated by the fact that none of the fees sought would have been incurred by the Petitioner had the Agency not implemented an unlawful policy. That is, had the non-rule policy not been utilized to support Administrative Complaints against the three facilities, none of the fees sought would have been incurred. The Petitioner presented a "shot-gun" approach pursuing every avenue available (including the underlying rule challenge) to dissuade the Agency from pursuing its action against the facilities. Only the rule challenge proved successful. Had the rule challenge not proved successful, residents would have been relocated from their homes. The Petitioner would have incurred extensive financial loss. William E. Williams and Carlos Alvarez testified as experts on behalf of the Petitioner. Their testimony has been considered and their opinions regarding the reasonableness of the fees sought by Petitioner has been deemed persuasive. Based upon the totality of the evidence presented, it is determined that the Petitioner prevailed in the rule challenge. The Agency has not demonstrated that the non-rule statement was required by the Federal Government to implement or retain a delegated or approved program or to meet a condition governing the receipt of federal funds. The formal hearing for fees in this cause lasted 4.75 hours. Petitioner's counsel expended time in preparation for the hearing and in post hearing activities. A reasonable fee associated with that time would not be less than $15,000.00.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 18, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.002, 33-19.006, 33-19 et. seq., 33-19.012, 33-23 et. seq." were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules concern medical care of inmates. The Petition is, to say the least, confusing. This confusion is caused by the Petitioner's frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 17, State of the Case and Facts, provides the following: 17. That the (Petitioner) has learned that the (Respondent) act [sic] pursuant to an invalid delegation as 33-3.002 33-19 et. seq., 233-23 et. seq. that fail to establish adequate standards for agency decision making, and vests unbridled discretion in the agency or employees that's inconsistant [sic] to the statutory requirements of 120.54 and 944.09. This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in allegedly releasing confidential medical information to "security staff and psychologist or and other staff or employees with criminal intent" and other medical practices of the employees of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Again, most of the Petitioner's arguments apparently concern violation of constitutional rights by the acts of employees of the Respondent as opposed to the violations of constitutional rights in the Challenged Rules. Insufficient alleged facts concerning why it is believed that the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 10, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. The Petitioner was informed that his Petition was being dismissed and the Petitioner was given an opportunity to file an amended petition. No amended petition has been filed by the Petitioner. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
