The Issue Whether the petitioner is entitled to an award under section 57.111, Florida Statutes, of attorney’s fees and costs incurred in the appellate matter Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994), and, if so, the amount of such award.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is the state agency responsible for issuing occupational licenses to veterinarians with access to the backside of a racetrack and for regulating such licensees. Sections 550.10(1)(b) and .105(2)(d)2, Florida Statutes. Dr. Witmer has been licensed to practice veterinary medicine in Florida since January 1, 1993, and, as of October 19, 1993, he was authorized to practice veterinary medicine at Florida racetracks by virtue of a pari-mutuel wagering occupational license (“license”) issued by the Department. He has been domiciled in Florida at all times material to this matter. On October 19, 1993, Dr. Witmer was a partner in a professional practice in veterinary medicine with its principal office at 1450 Southwest Third Street, Pompano Park, Broward County, Florida. His professional practice had three full-time employees and a net worth, including both personal and business investments, of less than $2 million. In the Administrative Complaint and Emergency Order of Suspension dated October 19, 1993, the Department took two actions with respect to Dr. Witmer’s license.1 First, in the administrative complaint, it put Dr. Witmer on notice that the Department had initiated a disciplinary action against him, charging him with violations of a statute and a rule governing his license which, if proven, would justify the imposition of penalties, including revocation or suspension of his license. Secondly, in the emergency order of suspension, it summarily suspended Dr. Witmer’s license. Dr. Witmer requested a formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to challenge the truth of the allegations contained in the administrative complaint. The request was forwarded to the Division of Administrative Hearings and assigned DOAH Case Number 93-6638. That action was pending at the time Dr. Witmer filed the application for attorney’s fees and costs at issue in this proceeding. Underlying proceeding On the basis of the allegations contained in the administrative complaint and its determination that Dr. Witmer’s interest in his license was “far outweighed by the immediate danger to the public health and safety and to the integrity of harness racing in the State of Florida,” the Department suspended Dr. Witmer’s pari-mutuel wagering occupational license as of October 19, 1993, ordered him to cease and desist from all activities authorized by the license, and barred him from entering any pari-mutuel establishment as a patron for the duration of the emergency suspension. Dr. Witmer chose to seek immediate judicial review of the emergency order pursuant to sections 120.60(8) and 120.54(9)(a)3, Florida Statutes (1993). It is this appellate proceeding which is the proceeding underlying Dr. Witmer’s application for attorney’s fees and costs at issue herein. State agencies are authorized by section 120.60(8), Florida Statutes (1995) to immediately suspend a license under the following circumstances and subject to the following conditions: If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon. Section 120.54(9)(a), Florida Statutes, provides in pertinent part: If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that: * * * 3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. . . . The agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable. On February 2, 1994, the District Court of Appeal for the Fourth District of Florida issued its opinion in Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Case Number 93-3232, reported at 631 So. 2d 338. The court quashed the Emergency Order of Suspension, concluding that the order was “facially inadequate,” and ruling that “the Department’s findings of immediate danger to the public welfare are not supported by specific facts and reasons as required by 120.54(9)(a)3, Florida Statutes.” Id. at 340, 343. The district court in Witmer observed that its review was limited to a determination of whether the order complied with the requirements of section 120.54(9)(a)3 and based its analysis upon the following rules of law: If the facts alleged in the complaint and [emergency] order are sufficient to demonstrate immediacy, necessity and fairness, no hearing is required prior to the emergency suspension. . . . The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. (Citation omitted.) Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. (Citation omitted.) The order must be “factually explicit and persuasive concerning the existence of a genuine emergency.” (Citation omitted.) Witmer, 631 So. 2d at 341. In reaching its conclusion that the emergency order was facially inadequate, the court in Witmer held that the Department failed to allege facts in the complaint and order to establish the essential elements of the violations upon which the emergency suspension was based. Firstly, the court found that the charge in the emergency order that Dr. Witmer had failed to report gratuities was not supported by any allegations of fact in the complaint and order. Id. at 341. Secondly, the court found that the Department failed to allege that Dr. Witmer’s actions related to horse racing or to race horses, an essential element of a violation of section 550.235(2), Florida Statutes, and of rule 61D-1.002(10), Florida Administrative Code. Id. at 342. Thirdly, the court found that the Department failed to allege that Dr. Witmer reached an agreement with a second person to commit the violation, an essential element of any conspiracy, including one to violate section 550.235(2) and rule 61D-1.002(10). Id. Finally, the court concluded that the public harm alleged by the Department in the order was too attenuated to support the emergency suspension of Dr. Witmer’s license. Id. at 343. The district court issued its mandate to the Department on February 18, 1994, directing it to act in accordance with the opinion quashing the Emergency Order of Suspension. The Department did not seek review of the decision of the district court in the Florida Supreme Court. Consequently, the decision of the district court had the effect of nullifying the emergency suspension of Dr. Witmer’s license. Summary Dr. Witmer was a small business party, as that term is defined for purposes of section 57.111, at the time the Department entered the emergency order.2 The evidence is sufficient to establish that the Department initiated an action against Dr. Witmer when it entered an Emergency Order of Suspension. This order was issued under the authority granted state agencies in section 120.60(8), Florida Statutes. The order had the effect of immediately and summarily suspending Dr. Witmer’s pari-mutuel wagering occupational license. Dr. Witmer had the right to seek immediate judicial review of the emergency order pursuant to section 120.54(9)(a)3. The appellate court quashed the emergency order because it was legally insufficient to support the suspension of Dr. Witmer’s license under the standards of section 120.54(9)(a)3. The Department did not appeal or seek further review of the appellate court’s decision. Dr. Witmer, therefore, prevailed in the administrative proceeding initiated by the Department. The Department presented no evidence to establish that its action in ordering the emergency suspension of Dr. Witmer’s license had a reasonable basis in law and fact or that any special circumstances exist which would make an award of attorney’s fees and costs in this case unjust.3 The monetary value of the attorney’s fees rendered in connection with the appellate proceeding culminating in the decision quashing the Emergency Order of Suspension is $9,715.00, and the costs incurred total $250. These fees and costs are reasonable and were necessary to prosecute the appellate proceeding.4
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2016).1/
Findings Of Fact Based on the evidence presented at hearing, the following findings of fact are made: The Agency is the state entity which supports vulnerable persons with various developmental disabilities. The Agency contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. The ARC of Martin County, Inc. (the ARC), is a service provider for the Agency. Ms. Ford applied with the ARC to become an after-school counselor, a position of trust which requires completion of level 2 background screening. The Department of Children and Families conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Ms. Ford admitted in her exemption request paperwork and her testimony at hearing, summarized below. On September 30, 2011, Ms. Ford entered a plea of guilty to forgery, driving on a suspended license, and providing a false name to law enforcement, for events that took place on April 9, 2010. Forgery, a felony of the third degree, is a disqualifying offense for employment in a position of trust. She was ordered to pay court fees and costs, and was put on probation for a period of 18 months for that offense. In her responses in the Exemption Questionnaire, Ms. Ford gave few details as to the events surrounding the disqualifying offense itself. She stated only that she was a witness to an accident on March 20, 2011, almost a year after the forgery incident, and, after identifying herself to the police, was arrested on an outstanding warrant from Martin County for the forgery charge. Ms. Ford wrote in her own words:2/ The forgery was do to traffic when I was pulled over and I gave my sister name to the officer. The officer then allowed me to go to go. I didn't know I had a warrant for Martin County until the night of the crash. In response to inquiries concerning another arrest for driving with a suspended license and providing a false name to a law enforcement officer while being arrested or detained a couple of months later on May 9, 2011, Ms. Ford wrote: I was on my to work and I was running late so I then was doing over milage and I was pulled over and gave officer a other name, cause I didn't want to be late for work. At hearing, in response to inquiries concerning her arrest for shoplifting on January 22, 2013, Ms. Ford acknowledged shoplifting a medical device for her daughter from Wal-Mart. Ms. Ford completed all confinement, supervision, and nonmonetary conditions imposed by the court for her disqualifying offense by March 29, 2013. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region of the Agency. He has served in his current position for three years and has been employed with the Agency for seventeen years. Mr. Driscoll credibly testified that the Agency has responsibility for a very vulnerable population, many of whom are unable to later tell others about the actions of their caregivers. This population is thus very susceptible to exploitation. Mr. Driscoll noted that the Agency must consider any prior criminal conduct or dishonesty very carefully. In her written submission to the Agency, Ms. Ford did not recognize that she caused any harm or injury to any victim. However, at hearing, she admitted that she caused injury to her sister when she provided and signed her sister's name to law enforcement after being detained or arrested on more than one occasion. Ms. Ford submitted three identically worded "form" character reference letters to the Agency, stating generally that she is a responsible, reliable, and honest person. The letters do not indicate the employment status or positions of the individuals signing the references. Ms. Ford further stated that she was remorseful. In her Exemption Questionnaire, Ms. Ford wrote: Yes my remorse is I accepting made bad choose in my life and I accept full responsibility for the actions that I made. I want to move forward and put the pass behind me so I can make a better future for me and my kids. Ms. Ford seems sincere in her desire to assist vulnerable persons and asks for a chance to work with them to demonstrate that she is rehabilitated. However, the statute requires that rehabilitation be shown first; only then may an exemption for disqualification be granted. While Ms. Ford stated that she is rehabilitated, she offered little evidence to clearly demonstrate that. She completed a home health aide course in 2012, but has not participated in other counseling or coursework since the disqualifying offense. Ms. Ford's recent work history includes employment as an administrative assistant with Florida Community Health Centers, Inc., from October 8, 2014, to October 5, 2015, and employment as a mental health technician with Sandy Pines Residential Treatment Center from July 18, 2008, to January 7, 2014. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was over five years ago. However, Ms. Ford's history since her disqualifying offense includes more to reflect incidents and does not contain sufficient positive indications of rehabilitation. Ms. Ford failed to prove by clear and convincing evidence that she is rehabilitated and that she will not present a danger if she is exempted from her disqualification from employment in a position of trust.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Ms. Jennifer Ford's application for exemption from disqualification. DONE AND ENTERED this 11th day of October, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of October, 2016.
The Issue The issue in this case is whether the Respondent, the Department of Insurance, should pay reasonable attorney fees and costs to Crudele under Section 57.111, Florida Statutes (1997), the Florida Equal Access to Justice Act, after Crudele appealed and reversed the Department's Emergency Order of Suspension.
Findings Of Fact On July 15, 1996, the Department issued an Emergency Order of Suspension of Crudele's eligibility for licensure and license as a Florida life insurance agent and life and health insurance agent. The Emergency Order of Suspension was based on alleged violations of the insurance code in connection with the surrender of insurance annuities for purchase of a startup company's unsecured promissory notes. It stated: Based on the foregoing specific facts and for the reasons of protecting the insurance-buying public and insurers from further harm, preventing further abuses of fiduciary relationships, and preventing further defrauding of insureds and insurance companies by the [Petitioner], the Insurance Commissioner finds that [Crudele] constitutes and is an immediate and serious danger to public health, safety, or welfare necessitating and justifying the Emergency Suspension of all licenses and eligibility for licensure and registrations heretofore issued to [Crudele] under the purview of the Department of Insurance. The danger, more specifically, is to the insurance-buying public which must place its trust in the honesty and competence of insurance agents. The trust involves the responsibility that insurance agents have for fiduciary funds accepted by them and insurance matters entrusted to them. The danger is clear and present that failure to properly handle such funds and matters may cause serious losses and damage to the insurance-buying public. Prior to issuance of the Emergency Order of Suspension, the Department received two verified complaints--one by the alleged victim, and the other by her adult daughter. The complaints alleged essentially: Crudele was introduced to Mary Clem, an 84 year-old widow of a tenant farmer, by Charles Perks, Clem's insurance agent, in 1992. In 1992, Crudele and Perks solicited and sold Clem two annuities for a total of $50,000, representing Clem's life savings from working in sick people's homes as a nurses aide. A year after selling the annuities, Crudele and Perks returned to Clem and convinced her to invest the money she had in her annuities into a new company called Zuma that was to recycle automobile tires into useful products. Crudele and Perks represented that Zuma was a "sure fire business." They said they were offering Clem the opportunity to get "in on the ground floor" and that the stock would then go on the open market and double in value. Clem did not have a great deal of education and had no experience investing in stocks or bonds. Her sole source of income was Social Security plus her modest savings. She conceded that when she was offered a 12% interest rate, she found the offer too irresistible to refuse. Neither Crudele nor Perks gave Clem a prospectus or any other descriptive brochure about Zuma. Clem purchased a total of three Zuma promissory notes at three separate times for a total of $60,000. This represented the bulk of her retirement savings. Clem acted based on her trust and confidence in Crudele and Perks. Clem later went to a lawyer to draft a will. The lawyer became very concerned about Clem's purchases of the Zuma promissory notes and her inability to understand the nature of the transaction. Clem was not getting any of her payments from Zuma as promised. Clem was "going out of her mind" with worry. She summoned her daughter, Roberta Anderson, to come down to Florida from Indiana to investigate the matter. Anderson was unable to contact Crudele, and he did not contact her. Anderson and Clem were not aware of any efforts on Crudele's part to recover the funds or otherwise remedy the situation. After a great deal of effort, Anderson was able to recover approximately $23,000 of her mother's money. Crudele apparently played no part in helping Anderson recover the $23,000. The Zuma notes went into default, and apparently the remainder of the money was lost. Clem suffered a very serious financial loss that, given her circumstances, she could ill afford. It may be inferred from the evidence that the Department based its Emergency Order of Suspension on the Clem and Anderson verified complaints. There was no evidence of any other basis for the Emergency Order of Suspension. There was no evidence as to whether the Department conducted any investigation of any kind prior to entry of the Emergency Order of Suspension. Nor is there any evidence as to the Department's decision-making process. The Emergency Order of Suspension stated: (1) that it was being issued pursuant to "sections 120.59(3) [and] 120.60(8) [now Section 120.60(6), Florida Statutes (1997)], Florida Statutes [1995]; (2) that Crudele had "the right to request a hearing in accordance with the provisions of Section 120.59(4), Florida Statutes [1995]"; and (3) that Crudele "was entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes [1995], and Rule 9.110, Florida Rules of Appellate Procedure." The Emergency Order of Suspension also stated that an Administrative Complaint seeking final disciplinary action would be filed within 20 days. On July 15, 1996, the Department filed an Administrative Complaint on essentially the same allegations as those in the Emergency Order of Suspension. Crudele sought judicial review of the Emergency Order of Suspension in the District Court of Appeal, First District. On August 19, 1997, the court issued an Opinion reversing the Emergency Order of Suspension because it did not "set forth particularized facts which demonstrate sufficient immediacy or likelihood of continuing harm to the public health, safety, and welfare to support a suspension of his license without notice and hearing." The court's Mandate issued on September 4, 1997; it referred to the court's Opinion and commanded that "further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida." The Administrative Complaint filed against Crudele was given Division of Administrative Hearings (DOAH) Case No. 97-2603. On February 17, 1998, a Final Order sustaining some of the charges and suspending Crudele's license and eligibility for licensure for six months was entered in Case No. 97-2603.
Findings Of Fact On September 6, 2001, Petitioner Bowers filed with the Florida Commission on Human Relations (Commission) a Charge of Discrimination against Respondent, Big Red Waste, Inc. The Charge recited that the most recent or continuing date of discrimination was July 10, 2001, for a finite, one-time act of alleged unlawful employment practice, to wit: termination on the basis of race (Black) and in retaliation. One hundred and eighty days from the filing of Petitioner's Charge with the Commission would have been on or about March 5, 2002. On September 19, 2003, the Commission entered a Dismissal and Notice of Rights. On December 23, 2003, the Commission entered an Amended Dismissal and Notice of Rights. The Commission's Amended Dismissal and Notice of Rights (Amended Dismissal) recited that on May 14, 2002, the Commission had received notice that Respondent had filed a voluntary Chapter 7 Petition in Bankruptcy. Therefore, it is presumed that as of May 14, 2002, an automatic stay of proceedings before the Commission was in effect. The Commission's Amended Dismissal also stated: . . . It has been more than 180 days since Complainant's complaint was filed, and since no determination has been made due to the automatic stay that was issued in Respondent's bankruptcy case, and since Complainant has been previously notified by the Commission of his obligation to file a Notice of Claim [in the federal bankruptcy court], the Commission hereby dismisses this Charge of Discrimination and provides the following Notice to Complainant. Since the Commission did not make a determination of cause or no cause on your complaint within 180 days of the filing of the complaint, you may proceed as if the Commission determined there was reasonable cause. Section 760.11(8), Florida Statutes; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002). You must initiate a civil lawsuit within 1-year from the date of this dismissal, or an administrative action with the Division of Administrative Hearings within 35 days of the date of this dismissal, provided neither date has exceeded a total of four (4) years from the initial date of the violation. Section 760.11(4), Florida Statutes; Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). If more than four (4) years have passed once the automatic stay is lifted on Respondent's bankruptcy case, you must file your civil lawsuit, or your administrative action within 30 days of the lifting of the automatic stay. Morsani v. Major League Baseball, 739 So. 2d 610 (Fla. 2nd DCA 1999). If the Respondent has not emerged from bankruptcy, and if you determine you do not want to wait until Respondent emerges from bankruptcy, you may file a Motion for Relief from Automatic Stay, and present your argument and authorities to the bankruptcy judge assigned to Respondent's bankruptcy case. The Commission does not assist Complainants with filing the Motion for Relief from Automatic Stay. You must consult an attorney on your own for that purpose. [Bracketed material added for clarity.] One year from the Commission's December 23, 2003, Amended Dismissal will be December 22, 2004. Thirty-five days from the Commission's December 23, 2004, Amended Dismissal would have been January 27, 2004. Four years from July 30, 2001, the initial date of the violation, will be July 29, 2005. On February 12, 2004, Petitioner sent a letter to the Commission stating that the Commission's "right to sue" letter did not include a blank Petition for Relief. However, the referral packet from the Commission to the Division included no "right to sue letter." The Commission's response to the Order of the undersigned dated May 3, 2004, does not contain a "right to sue" letter. On February 17, 2004, the Commission entered an Order to Show Cause Why Case Should Not Be Closed Because of Bankruptcy Proceedings (Commission's Order to Show Cause). The Commission's Order to Show Cause noted that Respondent had filed a Voluntary Petition for Bankruptcy, Chapter 11, on October 9, 2001, and that the same case was converted to a Chapter 7 bankruptcy proceeding on May 7, 2002. The Commission's Order to Show Cause also noted that a letter advising Petitioner of the bankruptcy was sent on May 20, 2002, and that a final order distributing all assets and dismissing the bankruptcy case was entered on September 9, 2002. The Commission ordered the parties to show cause, before March 19, 2004, why the discrimination case before the Commission should not be closed. The referral packet from the Commission to the Division included a Response to the Commission's Order to Show Cause, filed with the Commission by the trustee in bankruptcy, on or about March 8, 2004. That Response recites that Respondent's Chapter 7 bankruptcy proceeding was dismissed by a September 9, 2002, Order and that "upon the dismissal order becoming final all of the assets of Big Red Waste, Inc., reverted to that corporation and the automatic stay was terminated and vacated as to all creditors and claimants against Big Red Waste, Inc." The bankruptcy court docket was provided to the Division by the Commission in response to the May 3, 2004, Order herein. Assuming a 30-day appeal period, the dismissal by the Bankruptcy Court became final, at the latest, as of October 8, 2002. Therefore, the latest date the automatic stay was lifted would also have been October 8, 2002, although the September 9, 2002, date of the Bankruptcy Court's Order would be reverted-to, absent an appeal, and there is no evidence of an appeal. According to the Commission's response to the May 3, 2004, Order herein, the Petition for Relief in the instant discrimination case was "inadvertently dated March 13, 2004," but was filed with the Commission on March 9, 2004. The Petition for Relief recites repeatedly, "see attached complaint." There was no complaint attached to the Petition in the packet referred by the Commission to the Division, and none was provided in response to the May 3, 2002, Order herein. Therefore, pursuant to the terms of the May 3, 2004, Order herein, it is presumed that the "complaint" referred to in the Petition for Relief is the September 6, 2001, Charge of Discrimination, and it may further be presumed that no continuing pattern of discrimination continued after the finite termination date of July 1, 2001. However, by the Petition for Relief, Petitioner attempted to add as a party Respondent, Respondent's president, Yvonne Kiawtkowski. Petitioner has as yet demonstrated no good cause to add Respondent's president, in her individual capacity, to this administrative discrimination case when she was not individually charged in the original Charge before the Commission. The copy of the Petition for Relief and Attachments sent to the most recent address in the Commission file for Respondent's Corporation apparently were returned to the Commission. The same has occurred with regard to all papers mailed by the Division to that address. Therefore, no Notice of Hearing can be sent by the Division to Respondent's Corporation. Telephone calls by the undersigned's secretary to Big Red Waste, Inc.'s last known phone number, which was provided in the Commission's referral packet, have resulted in an oral response that the party at that phone number is not Big Red Waste, Inc. Recently, the Commission determined that Ms. Kiawtkowski has a new personal address. On June 21, 2004, the Petition for Relief and Attachments were returned to the Commission from that address too. The Commission has stated it cannot determine whether Ms. Kiawtkowski ignored the certified mail receipt for this mailing or whether she no longer resides in that area.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne N. Bowers 10951 Laureate Drive, Apartment 601 San Antonio, Florida 78249 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 549 Alachua, Florida 32615 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 730981 Ormond Beach, Florida 32173
Findings Of Fact The Petitioner is a manager of real estate specializing in condominiums. It was incorporated in Florida on August 30, 1978, as Property Management, Inc. at the address of its attorney and registered agent, Mr. Michael L. Hyman, Suite 400, 28 W. Flagler Street, Miami, Florida 33130. The corporation was involuntarily dissolved by the Secretary of State on December 5, 1979, for failure to file its annual report and pay its annual report filing fee. Petitioner admits that it was delinquent in submitting its annual report and filing fee, but contends that it was entitled to notice of delinquency prior to involuntary dissolution and reissuance of its corporate name. Through testimony of Petitioner's president and corporate counsel's secretary, who opens and distributes incoming mail, Petitioner established that it had not received any of the three notices discussed below. Rather, Petitioner learned of the dissolution in February, 1980, when it sought telephone service. It then submitted the annual report and filing fee which were received by the Secretary of State on March 17, 1980. By that time the name Property Management, Inc. had been issued to another corporation and was not available. Petitioner was therefore reinstated as Property Management of South Florida, Inc. The following notices relevant to this proceeding were prepared by the Secretary of State: January, 1979: Notices to all Florida corporations that annual reports and filing fees were due by July 1, 1979. September 1, 1979: Reminder notices to delinquent corporations that dissolution would follow if annual reports and filing fees were not submitted within 90 days. December 5, 1979: Certificates of dissolution issued to corporations which failed to submit the reports and filing fees. The above notices were prepared from computer data and were transmitted by ordinary mail. Respondent produced a computer printout with Petitioner's correct name and address showing dissolution on December 5, 1979. However, no evidence was adduced to establish that this notice or either of the preceding notices were actually mailed to Petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's request for return of the name Property Management, Inc. be DENIED. DONE and ENTERED this 29th day of July, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael L. Hyman, Esquire Suite 400 Roberts Building 28 West Flagler Street Miami, Florida 33130 William J. Gladwin, Jr., Esquire Office of the Secretary of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
The Issue Whether Mike Futch, d/b/a Futch Construction Company, (Respondent) violated Sections 440.10 and 440.38, Florida Statutes, and if so, what penalty should be imposed. References to sections are to the Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440, Florida Statutes, which requires that employers secure workers’ compensation coverage for their employees. At all times material to this case, Respondent was engaged in the construction business within the meaning of Chapter 440, Florida Statutes. Its individual principal, Mike Futch (Mr. Futch), was responsible for the day-to-day operations of the business. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for all persons employed by Respondent to provide construction services within Florida. Chapter 440 requires that the premium rates for such coverage be set pursuant to Florida law. It is undisputed that Respondent had not furnished the required coverage, and that there was no valid exemption from this requirement. Accordingly, on May 12, 2004, the Stop Work Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that Respondent employed individuals whose identities are not in dispute, under circumstances which obliged Respondent to provide workers' compensation coverage for their benefit. Based upon Respondent’s payroll records, Petitioner correctly calculated the penalty amount imposed by law under all the circumstances of the case, and issued the Amended Order imposing a penalty assessment in the amount of $198,311.82. Respondent did not persuasively dispute the factual or legal merits of Petitioner's case. Rather, Respondent suggested that this forum has some type of general equity powers to lessen the penalty on the grounds that Respondent made a good faith effort to provide coverage for its workers. The record does demonstrate that Mr. Futch in good faith engaged a Georgia insurance agent and instructed him to obtain workers' compensation coverage which would satisfy the requirements of Florida law with respect to Respondent's Florida operations. The Georgia agent's failure to obtain coverage that satisfies Florida's requirements is a regrettable circumstance, but it raises no issue over which this forum has authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order that affirms the Amended Order in the amount of $198,311.82. DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2005. COPIES FURNISHED: Joe Thompson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Patrick C. Cork, Esquire Cork & Cork 700 North Patterson Street Valdosta, Georgia 31601 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact For purposes of the Motion, the following allegations contained in the petitions are accepted as true: Albert Figueroa is an approved visitor for an inmate in the custody of the Florida Department of Corrections. Albert Figueroa regularly visits an inmate under the custody of the Florida Department of Corrections. Jaylin Figueroa has a brother in the custody of the Florida Department of Corrections. Jaylin Figueroa regularly visits with this brother. Martin Glick is on the Florida Department of Corrections approved visitor list for an inmate in its custody. Imposition of visitation restrictions upon an inmate, including indefinite suspension of these privileges, would affect the Petitioners’ visitation of that inmate.
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.
