The Issue The issue is whether Respondent Three Rivers Legal Services engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact The Petitioner Attorney Kaimowitz was born on May 5, 1935. He attended the University of Wisconsin, served in the U. S. Army, and was a journalist early in his career. He worked to obtain voting rights for African-Americans in the Deep South as a volunteer for the Congress of Racial Equality in the summer of 1964. He attended law school at New York University and while attending law school worked for the New York Civil Liberties Union as an investigator. Upon graduating from law school in 1967, he applied for membership in the New York State Bar Association and was eventually admitted. He was employed as a staff attorney with the Center on Social Welfare Policy and Law in New York City. He was suspended from that position. In 1970 he was awarded a Reginald Heber Smith Fellowship which took him to Michigan Legal Services in Detroit, Michigan. He remained there until he took a sabbatical so that he could complete a Legal Services Corporation Research Fellowship in 1979 and 1980, which was located at the University of North Carolina at Chapel Hill. He could have returned to his employment at Michigan Legal Services but instead sued that entity. He also sued Pennsylvania Legal Services, Legal Services of North Carolina, and the Mental Health Law Project of the District of Columbia for alleged age discrimination in hiring. From December 1980 until 1984 he was employed as associate counsel for the Puerto Rican Legal Defense and Education Fund in New York and Connecticut. He left there because of a "labor dispute." In March of 1985 he was hired as director of the Greater Orlando Area Legal Services (GOALS). He was fired in 1986. He sued GOALS, and obtained a financial settlement. Subsequently he applied for jobs with Broward County Legal Services and Central Florida Legal Services. When he was turned down for those jobs, he sued both entities based on age discrimination. The action against Central Florida Legal Services ended in 1999 or 2000 with a confidential settlement involving the payment of money to Attorney Kaimowitz. At some point he also entered into a confidential settlement with Broward County Legal Services. Attorney Kaimowitz claims that the suits he filed against various legal services programs were based on his personal mission to reform the hiring practices of legal services programs, and he avers that he has been on that mission since 1980. Although he claims to have instituted these suits for altruistic motives, many of them resulted in monetary settlements that benefited him personally. None of these suits were tried to the point that a verdict resulted. After being fired by GOALS he obtained a master's in communications from the University of Central Florida in 1988. While attending school he worked as a journalist for the "Orlando Weekly," a publication targeted to African-Americans in the Orlando area. Subsequently Attorney Kaimowitz represented African- Americans in civil rights actions, including employment discrimination in the Orlando area. He was in private practice of law at that time although he had no office. In 1989 or 1990 a court assessed fees against him for engaging in frivolous litigation. Attorney Kaimowitz moved to Gainesville because his domestic partner was seeking a Ph.D. at the University of Florida. From May 14, 1999, until February 7, 2002, he worked for Alachua County as an investigator into citizen complaints of discrimination in housing and public accommodation. He was terminated from that job because of accusations of "serious misconduct." He claimed his discharge from this job was in retaliation for whistle blowing. He sued, and received a monetary settlement. He subsequently and unsuccessfully sought employment with the City of Gainesville, the University of Florida, and with the State of Florida. He had a dispute with the University of Florida based on the University's failure to publish written material that he submitted. He filed suits pro se based on age discrimination against Gainesville for failing to hire him and against the University of Florida and the Florida Board of Regents because of the publication dispute and because they refused to hire him. The suit against the Board of Regents was settled by a monetary payment to him of a confidential sum, according to Attorney Kaimowitz. In 1997, Judge Maurice Paul, a U. S. District Judge, entered an order forbidding Attorney Kaimowitz from filing pro se lawsuits in his court. Prior to 2003, Attorney Kaimowitz was disciplined by the Florida Supreme Court on two occasions. A Florida Bar report dated January 29, 2002, reported a finding on January 3, 2002, of professional misconduct. He was reprimanded for making a statement he knew to be false or with reckless disregard as to its truth or falsity concerning the integrity of a judge. He had been previously reprimanded by the Florida Supreme Court in 1998. Attorney Kaimowitz is proud that he has filed countless motions to disqualify judges. He claims he has succeeded in disqualifying, at one time or another, every judge in the Middle District of Florida, and several in the Eighth Judicial Circuit, which includes the Gainesville area. Attorney Kaimowitz agrees with the notion that he is, "the most well-known offensive personality in the Eighth Judicial Circuit," but asserts that this reputation was not fully achieved until 2004. This self-characterization is accepted based on the evidence adduced in this case. Attorney Kaimowitz suffered a hearing loss and began using hearing aids in 1992. It is found as a fact that he hears well enough to try a case, which was demonstrated in this case. At his request, counsel table was moved close to the bench. He subsequently announced that this accommodated his hearing deficiency. Attorney Kaimowitz was arrested for causing a disturbance in a Gainesville City Commission meeting in 2002. He is very proud of being arrested. On November 16, 2004, Eighth Judicial Circuit Judge Larry Gibbs Turner entered an order entitled Sentence on Judgment of Guilty of Direct and In-Direct Criminal Contempt, following a Judgment of Guilty of eight separate allegations of direct and indirect criminal contempt on October 13, 2004. This Order recited the following language: A review of the fifteen (15) volumes of the record in this cause clearly demonstrates that throughout these proceedings Mr. Kaimowitz carefully, willfully, and with calculation and premeditation abused his status as a lawyer/pro se litigant in filing repetitious and frivolous pleadings including, but not limited to, his repeated motions to recuse every judge associated with this case. Mr. Kaimowitz's most recent effort to recuse this undersigned judge was framed by his GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AND/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA AND AFFIDAVIT/CERTIFICATE WITH GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AN/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA. The motions/applications seeking recusal of each of the judges in this cause provide ample evidence of Mr. Kaimowitz's "style" of litigation in which he intentionally confuses, obfuscates, insults, defames, and makes scurrilous and unsubstantiated claims against parties, judges, witnesses, and others related and unrelated to the litigation. Further evidence is found in his VERIFIED MOTION FOR ARREST OF JUDGMENT BASED ON FRAUD COMMITTED UPON THIS COURT. Beginning at page 10 of that motion Mr. Kaimowitz claims that he ". . . has learned that repeated motions for recusal as evidence pours in eventually tends to work in his favor. For instance, after Judge Jopling finally recused himself, Kaimowitz had little difficulty resolving at mediation the underlying cases. They were assigned to Judge Turner at the time, but all he did was agree to the parties' stipulated willingness to proceed to mediation." Over the following several pages, Mr. Kaimowitz recites his history of recusal litigation in other state and federal cases. Judge Turner permanently enjoined Attorney Kaimowitz from filing further pro se litigation in the county and circuit courts of the Eighth Judicial Circuit. Although Judge Turner based his finding on Kaimowitz v. The Florida Board of Regents, Eighth Circuit Case No. 01-1996-CA-3260, he noted a number of cases involving Attorney Kaimowitz going back to 1996, including Eighth Judicial Circuit Case No. 01-2003-CA-2400-A, Gabe Kaimowitz v. Gainesville, Florida, and the Gainesville Sun, in which Judge Toby S. Monaco outlined abuses as a basis for his dismissal of Attorney Kaimowitz's Complaint with prejudice. The Respondent and Its Executive Director, Allison Thompson TRLS exists pursuant to Title 42 U. S. Code, § 2996 et seq. It is governed, inter alia, by Title 45, Code of Federal Regulations, § 1600.1, et seq. Its mission is to provide equal access to the system of justice so that those who are otherwise unable to afford adequate counsel may have high quality legal assistance to seek redress of grievances. It receives funding from the Legal Services Corporation in Washington, D.C., the Florida Bar Foundation, United Way, and other local and national government sources. TRLS is headquartered in Gainesville, Florida, and serves eleven mostly rural counties surrounding Alachua County, as well as Alachua County. It works with other volunteer agencies and with pro bono attorneys. It is essential to the success of TRLS that it maintain cordial relations with the community and the bar. Ms. Thompson hires all of the TRLS management team. TRLS does not use an application form when seeking applicants for jobs. Advertisements for positions solicit resumes. TRLS does not maintain a "pool" of applicants for any particular job. The number of employees at TRLS fluctuates depending on funding. The racial, age, and gender composition of TRLS personnel from May 2003 to May 2004, was as follows: Whites 20 Blacks 19 Asian 2 Hispanic 2 Male 11 Female 32 Of the above, the oldest was born in 1947. Three of the above were born in that year. Since 2003, new attorney hires, (including law school graduates not admitted) were as follows: Whites 10 Blacks 6 Asian 0 Hispanic 1 Male 4 Female 13 Of these, the oldest was born in 1958. TRLS has hired, since Ms. Thompson has been Executive Director, at least one person who was over the age of 70. TRLS does not have quotas or a diversity plan that requires certain races, genders, or ages to be given preference in hiring. TRLS is guided in this regard by Title 45, Code of Federal Regulations, § 1616.1, et seq. Specifically, Title 45, Code of Federal Regulations, § 1616.6 requires that TRLS adopt, "employment qualifications, procedures, and policies that meet the requirements of applicable laws prohibiting discrimination in employment, and shall take affirmative action to insure equal employment opportunity." The hiring record of TRLS, taken as a whole, demonstrates compliance with this requirement and does not indicate any pattern of discrimination. Ms. Thompson has been the executive director of TRLS since 1996. She is an African-American. She graduated from the University of Florida Law School and was admitted to the Florida Bar in 1974. She has extensive experience in the delivery of legal services to the poor. She worked for Tampa Legal Services beginning in 1973. It became a Legal Services Corporation program while she was employed there. She began working for Rhode Island Legal Services in 1976, practicing primarily family law. Ms. Thompson worked for Philadelphia Legal Services for five years and then, beginning in 1982, worked for a number of years in the U. S. Virgin Islands where she was litigation director. She was appointed Executive Director of TRLS in December of 1996. Job applications with TRLS in 2003 and earlier Attorney Kaimowitz applied for a managing attorney position with TRLS in 1997. Ms. Thompson interviewed him and determined that he was an "interesting person" but was not the type of person who would work well with others. She concluded he would be difficult to manage. She noted that if she had a job which did not require working well with others, she might wish to hire him in the future. Attorney Kaimowitz applied for a job as a staff attorney in 2001. He received a letter dated May 13, 2001, from Ms. Thompson, advising him that he was not selected and that she would keep his resume on file. Attorney Kaimowitz responded to this letter with a letter dated August 15, 2001, that pointed out two settlements he had received from legal services programs in Florida based on their alleged discrimination against him because of his age. He also discussed his whistle blowing with regard to GOALS and stated, "I include this information to indicate that when there really is a will, there is a way." Ms. Thompson took this as a threat. Attorney Kaimowitz applied for a job as a managing attorney in the TRLS Lake City office in 2002. He was not interviewed for that position. TRLS advertised for a fair housing attorney and a fair housing testing coordinator in various publications during April 2003. Attorney Kaimowitz applied for both of these jobs. He interviewed with Ms. Thompson and Mary O'Rourke, a staff attorney with TRLS, on May 30, 2003. Ms. Thompson asked Ms. O'Rourke to sit in as a witness to the interview because she was concerned that Attorney Kaimowitz would sue TRLS if she did not hire him. Initially, Attorney Kaimowitz expressed an interest in both the fair housing attorney job and the fair housing testing coordinator job. However, during the interview Attorney Kaimowitz stated that he did not wish to apply for the fair housing attorney position, but wished to be considered only as an applicant for the fair housing testing coordinator position. The occupant of this position was expected to supervise individuals who would determine if discrimination in housing was occurring. Attorney Kaimowitz claimed during his testimony that he told Ms. Thompson and Ms. O'Rourke that his ability to hear was impaired. He claimed he told them he required an accommodation for his hearing loss. He stated that he had a discussion with Ms. O'Rourke during the interview about an electronic system where a court reporter would record words spoken, and the words would be displayed on a monitor so that he could read what was being said. Attorney Kaimowitz appeared at the interview wearing one hearing aid. Ms. Thompson said that Attorney Kaimowitz said that one of his hearing aids was "in the shop." Ms. Thompson testified that he announced during the interview that his hearing loss was corrected by his hearing aids. Ms. Thompson said it was clear that he had no difficulty in understanding her with only one hearing aid. In no event did she perceive him as being hearing impaired. Ms. O'Rourke stated that the conversation claimed by Attorney Kaimowitz regarding an electronic monitor system to aid hearing never occurred. Based on Ms. O'Rourke's testimony, Ms. Thompson's testimony, and Attorney Kaimowitz's credibility, which is addressed in detail below, it is found that at the time of this interview Attorney Kaimowitz did not claim the need for an accommodation based on an alleged hearing impairment and he was not perceived as being hearing impaired. Ms. Thompson wanted employees at TRLS who would maintain a good relationship with the local bar. Even though the housing testing coordinator position was not a job requiring the incumbent to be a licensed attorney, it is not helpful for TRLS to have employees who are at odds with the local bar or community. She was looking for an employee who was a team player, who could get along with the other employees at TRLS, the local bar, and with persons in the community. She also wanted someone with good references. The fair housing testing coordinator required training in Jacksonville. Ms. Thompson believed Attorney Kaimowitz could not be trained because, "He already knew everything." She believed he couldn't take orders. She was troubled because he had no references from people who had supervised him. Although attorneys who have their own practice cannot give references of supervisors, they usually can give a judge or judges as a reference, but Attorney Kaimowitz did not provide any judges as references. Attorney Kaimowitz provided a co-plaintiff in a lawsuit and a professor named Joe Little as references. Ms. Thompson called Professor Little but did not feel it would be worthwhile calling his co-plaintiff, who was embroiled in a lawsuit at the time. She was concerned because Attorney Kaimowitz told her, with regard to references, "everyone in Gainesville was suspect." Moreover, he did not provide any references from his time as director of GOALS, which was a job where he had a supervisor who could comment on his work. Ms. Thompson was aware of Attorney Kaimowitz's arrest during a Gainesville City Commission meeting, and was aware of at least one of his Florida Supreme Court reprimands at the time she decided not to hire him. She was also aware that he would occasionally write in "black English," and she found that offensive. She believed him to be a disruptive force. She stated she would not hire him if he was "the last man on earth." She stated that an equally obnoxious black man would often apply for positions at TRLS, and she would not hire him for the same general reasons that she would not hire Attorney Kaimowitz. Ms. Thompson thought Attorney Kaimowitz would be a liability to her organization. She noted that, "He makes comments without any basis. He makes sweeping comments when he knows nothing. He doesn't even check." Brenda Scafadi was eventually hired for the housing testing coordinator. She was, at the time, a 50-year-old white woman who had a disability in the form of fibromyalgia. She was not an attorney. She was hired because she was perceived to be a team player and she had good references. Ms. Scafadi resigned after about eight months and was replaced by Steve Malu, a 50-year-old Nigerian, who also was not an attorney. Attorney Kaimowitz was a person Ms. Thompson had personally known for about six years at the time of the interview. She also knew about him from his letters to the "Gainesville Sun" and numerous e-mails he sent to her and to others. She was aware of his reputation in the community. She refused to hire him because she did not believe he would be a good employee. Neither his age, nor his race, nor his claimed hearing loss was a factor in her decision. Attorney Kaimowitz received a letter from Ms. Thompson dated July 22, 2003, advising him that she had, "decided to offer the position to different applicants who I thought would be more appropriate for our needs." The Americorps positions On August 1, 2004, Americorps positions in Gainesville and Jacksonville were advertised. These jobs were targeted at inexperienced attorneys and paid "living expenses" and a promise of scholarship help rather than a salary. During the evening of August 2, 2004, Ms. Thompson offered testimony before the Gainesville City Commission. After her testimony she departed, although the meeting continued. After exiting the building, she heard footsteps behind her and turned to see Attorney Kaimowitz following her. There were no other people in the area. He stated that he wanted to "mediate our situation" but was informed by Ms. Thompson that there was nothing to mediate because she did not discriminate. She told him she was tired of him making disparaging comments about her program and her staff. Attorney Kaimowitz expressed an interest in the Americorps positions in an e-mail to Ms. Thompson dated August 5, 2004, which was in the nature of a resume. In this letter he said, "I certainly will refrain from any action I suggested I might take through this month of August, so that we can see if we can reach an accommodation in that time." Ms. Thompson regarded this as a threat. Ms. Thompson did not interview him for the Americorps positions because the "resume" e-mail of August 5, 2004, did not match the requirements of the job. Three of the positions were designed for attorneys TRLS could train so that they could recruit students from the law school to assist in the delivery of services. The other two positions required no litigation skills and were designed to provide limited legal services over the telephone to a large volume of clients. Another reason Ms. Thompson found Attorney Kaimowitz to be unsuitable for this job were statements he made to her, such as claiming she hired an "incompetent black male." She had seen, and was familiar with, another widely circulated writing in which he stated, "The real 'piece of work' is Three Rivers Legal Services, and their foolish young attorney of color Glorimil Walker, everyone's favorite minority attorney since she speaks her mind--even if it is against the adults and children at University Centre." The Americorps attorneys hired during this period, instead of Attorney Kaimowitz, included Shelly E. Beach, who was a 26-year-old white female, Melissa B. Long, a 29-year-old black female, and Julie A. Santioni, a 26-year-old white female. Ms. Thompson, and TRLS did not discriminate or retaliate against Mr. Kaimowitz in refusing him an Americorps position. He was not hired because the job was unsuitable for him and because he was unsuitable for employment at TRLS. Retaliation Attorney Kaimowitz's original claim of retaliation was based on his view that TRLS would not hire him because he had sued Central Florida Legal Services and that Ms. Thompson knew and would not hire him because of that lawsuit. Ms. Thompson denied this. Attorney Kaimowitz's second claim of retaliation was based on the complaint to the Commission concerning the refusal of TRLS to hire him for the fair housing testing coordinator position. For reasons that are abundantly clear herein, there were numerous reasons for not hiring him other than retaliation. Attorney Kaimowitz's Credibility Attorney Kaimowitz claims that he applied for the fair housing attorney position as well as the fair housing testing coordinator. Both Ms. Thompson and Ms. O'Rourke stated that at his interview he said he wished to apply only for the fair housing testing coordinator. Attorney Kaimowitz also claims that he informed Ms. Thompson and Ms. O'Rourke at his interview that he was hard of hearing and required an accommodation. Ms. Thompson and Ms. O'Rourke both said that during the interview he asserted that any hearing problems he had were resolved by hearing aids. Attorney Kaimowitz has demonstrated through his pleadings and actions in court, and before this Administrative Law Judge, that he has a low regard for the truth. As an example, he claims to believe in the equality of mankind, but during his examination of Ms. Thompson, he threw a document at her and stated that, "And then you could never find discrimination unless I don't want a nigger in here." As a consequence all issues involving credibility are resolved against Attorney Kaimowitz. That being the case, it is found by a preponderance of the evidence that he did not seek the fair housing attorney position in 2003 and that he did not assert during the interview that he was hard of hearing and thus required an accommodation.
Conclusions For Petitioner: Gabe H. Kaimowitz, Esquire, pro se Post Office Box 140119 Gainesville, Florida 32614-0119 For Respondent: Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petitions be dismissed. DONE AND ENTERED this 1st day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608 Gabe H. Kaimowitz, Esquire Post Office Box 140119 Gainesville, Florida 32614-0119 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Dr. Fenichel is a Florida licensed dentist having been issued license number DN-0008157. Dr. Fenichel maintains a professional dental practice in the State of Florida having a principal business address of 7544 Lake Worth Road in Lake Worth, Florida 33467. Dr. Fenichel maintains his primary residence within the State of Florida. Dr. Fenichel employs no more than twenty-five full-time employees and has never employed more than twenty-five full-time employees. Dr. Fenichel has a net worth of less than two million dollars, including both personal and business investments and has not had a net worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Sometime in the late summer or early fall of 1989, F.P., 1/ a former patient of Dr. Fenichel, (hereinafter referred to as the "Patient") filed a written complaint regarding the care and treatment she had received from Dr. Fenichel. During the fall of 1988, Dr. Fenichel provided dental care to the Patient which included prophylaxis, an extraction, the recapping of crowns on teeth #'s 21, 22, 27 and 28 and a removable denture for teeth #'s 29, 30, 31 and 18, 19 and 20. DPR began an investigation of the Patient's complaint assigning it DPR Case Number 89-08779, notified Dr. Fenichel on or about September 27, 1989 of the complaint, conducted interviews with the Patient and Dr. Fenichel, obtained a written response, the Patient's records and x-rays from Dr. Fenichel, and obtained information and x-rays from a subsequent treating dentist in New Jersey, Dr. Lucca. The Probable Cause Panel of the Board of Dentistry met on at least three separate occasions pursuant to Section 455. 255, Florida Statues, to review DPR's investigative report and recommendations concerning the case. On March 15, 1990, the Probable Cause Panel met to consider the DPR investigative report and the recommendation from DPR of a finding of probable cause of a violation with a letter of guidance issued to Dr. Fenichel in connection with his treatment of F.P. The March 15, 1990 Probable Cause Panel made a determination that there was probable cause of a violation and, after discussion, directed DPR to file an Administrative Complaint against Dr. Fenichel's license to practice dentistry. The investigative report presented by the Department to the March 15, 1990 Probable Cause Panel included, among other things, summaries of interviews with Dr. Fenichel and with the complaining Patient, the Patient's written complaint, the written response of Dr. Fenichel, Dr. Fenichel's treatment/billing records and x-rays, a letter from Dr. Lucca, the subsequent treating dentist from New Jersey, outlining his clinical findings, x-rays and pictures apparently taken by Dr. Lucca and records of payments made by the Patient to Dr. Fenichel and to Dr. Lucca. Dr. Fenichel's billing records, his interview as reported by the Departmental investigator, his written response, and his treatment records all indicate that, from at least December 22, 1988 through February 23, 1989, the Patient was complaining about the work done by Dr. Fenichel, that Dr. Fenichel made several adjustments to the dentistry at no charge, and that the Patient's complaints were reflected in the observations and notes made by Dr. Lucca in March of 1989. In an entry dated January 17, 1989, Dr. Fenichel documented in his treatment records that the "patient maintains that partial is 'not right' she can't chew and is swallowing 'chunks'...". Dr. Fenichel also noted during this visit that he realigned the partial and adjusted the bite. During a February 23, 1989 visit, Dr. Fenichel noted that he again adjusted the partial. Dr. Lucca's records reflect that the Patient went to New Jersey on or about March 9, 1989 at which time he conducted an evaluation of her. Dr. Lucca had been the Patient's dentist when she was living in New Jersey. The Patient claims that this trip to New Jersey was necessitated by the pain she was experiencing from the work performed by Dr. Fenichel. Dr. Lucca advised the Patient of his clinical findings following the March 9, 1989 visit in a letter dated March 22, 1989 as follows: Porcelain to metal crowns on teeth #21, 22 and 27, 28 are ill-fitting, especially on facial margins. These are causing some gingival inflammation at present and may initiate caries at these margins in the future. The semi-precision removable partial denture framework fits well, but there is no occlusion of the posterior teeth on this partial denture. (posterior teeth do not meet.) Since you are uncomfortable and are complaining on the inability to chew, plus the above factors, I would suggest having the lower case redone. In addition to his clinical findings, Dr. Lucca advised the Patient that other dentists nearer to where she lived "...would certainly be able to help you so that you would not have to travel up here and have to stay several months." After seeing Dr. Lucca on March 9, 1992, the Patient was sent to another New Jersey dentist, Dr. Berger, who did a root canal on March 13 and 14, 1992. Dr. Fenichel's billing records reflect that the patient returned to his office on or about March 31, 1989, following her visit and evaluation with the New Jersey dentist and before the work was "redone." In her written complaint, the Patient alleged that during the March 31 visit she advised Dr. Fenichel of the New Jersey dentist's clinical findings. She claims that she requested Dr. Fenichel to pay for her treatment by Dr. Lucca, but Dr. Fenichel only offered to refund her money for the work performed by him. Ultimately, the Patient had Dr. Lucca redo the work done by Dr. Fenichel. It appears that Dr. Lucca also did some additional work on the Patient. Dr. Fenichel noted in his written response to the Patient's complaint that he had offered to refund her money for the work performed even though, in his opinion, there was nothing wrong with his work. No evidence was presented as to whether Dr. Fenichel ever refunded any money to the Patient. It is clear that the findings of the subsequent treating New Jersey dentist and the persistent complaints by the Patient were key factors in the Probable Cause Panel's decision to direct DPR to file an Administrative Complaint against Dr. Fenichel. At the March 5, 1990 Probable Cause meeting, the Panel and the DPR prosecuting attorney recognized that the credibility of the witnesses would be very important in order to establish at formal hearing that Dr. Fenichel was in violation of the rules and regulations of the Board of Dentistry. There was also a recognition that the work had been redone by Dr. Lucca and that it might be difficult and perhaps impossible to get an evaluation of Dr. Fenichel's work from a qualified expert who did not have a financial interest in the case. Following the March 15, 1990 Probable Cause Panel Meeting, DPR retained an expert, Dr. Rupert Q. Bliss, to evaluate the Departmental investigative report. Dr. Bliss noted several potential pitfalls to successful prosecution of Dr. Fenichel. Dr. Bliss expressed concern that no independent evaluation of Dr. Fenichel's work was possible since the work had been redone by Dr. Lucca. He suggested that complete records from Dr. Lucca and Dr. Berger would be necessary in order to successfully prosecute the case. Even though Dr. Bliss' editorial comments pointed out some of the potential problems to successfully prosecuting the case, he also noted some of the evidence that indicated Dr. Fenichel's work may not have met minimum standards. Dr. Bliss noted that Dr. Fenichel's patient records contained in the investigative report were inadequate and below minimum standards when measured against generally prevailing peer performance because there was no patient health history, no patient dental history, no tooth charting, no periodontal charting, and no treatment plan. In addition, Dr. Fenichel's treatment records were "very brief". Dr. Bliss reviewed two periapical x-rays of the Patient taken on or about March 13, 1989 and prior to the work performed by Dr. Lucca. Dr. Bliss was uncertain as to the origin of these x-rays. Dr. Bliss noted that the periapical x-rays dated March 13, 1989 showed two substandard crowned teeth with one tooth appearing "...to have the labial-gingival margin standing away from the tooth..." and the other appearing "...to have the distal interproximal crown margin short of the prepared tooth margin thus exposing a significant amount of cut tooth structure to the oral environment..." Dr. Bliss noted that these x- rays could establish a violation of the minimum standards for the practice of dentistry as measured against generally prevailing peer performance. The same x-rays and photos reviewed by Dr. Bliss were provided by the Department to the Probable Cause Panel for its March 15, 1990 meeting at a second meeting on September 14, 1990. In addition to Dr. Bliss' report and the investigative report discussed above, the September 14, 1990 Probable Cause Panel had before it for consideration yearly progress reports from the Patient's periodontist, Dr. Feldman, the billing record and x-rays from Dr. Berger, the New Jersey endodontist who performed the root canal on the Patient prior to Dr. Lucca redoing Dr. Fenichel's work, and copies of photographs from the Patient representing the physical condition of the dentistry prior to the work having been redone. The September 14, 1990 Probable Cause Panel met to consider the Department's renewed recommendation for a finding of probable cause and the issuance of a letter of guidance to Dr. Fenichel in connection with his treatment of F.P. After discussion and consideration, the September 14, 1990 Probable Cause Panel made a determination that probable cause of a violation did exist and again directed DPR to file an Administrative Complaint against Dr. Fenichel's license. At the September 14, 1990 Probable Cause meeting, the Panel and the Department's prosecuting attorney noted the crucial nature of credibility issues regarding the subsequent treating dentist and the Patient before making a determination that probable cause did exist to believe that Dr. Fenichel had violated Section 466.028(1)(y), Florida Statutes. As a result of the September 14, 1990 Probable Cause Panel decision, an Administrative Complaint was filed on or about October 19, 1990 for DPR Case Number 89-08779 initiating action against Dr. Fenichel's license to practice dentistry. Dr. Fenichel's treatment and billing records contained within the investigative report reflect the dates of treatment and the services provided to the complaining Patient as alleged in paragraphs numbered three and four of the Administrative Complaint. Paragraph five subparagraph (c) of the Administrative Complaint alleged that Dr. Fenichel's records regarding the complaining Patient were inadequate and below minimum standards for the profession. This allegation was based on Dr. Bliss' review of Dr. Fenichel's records regarding the Patient that were in the DPR investigative report. Subsequent to the filing of the Administrative Complaint, Dr. Fenichel's attorney took the deposition of Dr. Bliss. At the deposition, Dr. Fenichel's attorney provided Dr. Bliss with additional records from Dr. Fenichel's patient file. These documents prompted Dr. Bliss to partially retreat from his previous opinion that Dr. Fenichel's records regarding the Patient were inadequate. Subparagraphs (a) and (b) of paragraph five of the Administrative Complaint charged Dr. Fenichel with incompetence and/or negligence in his treatment of the Patient. These charges were based on the March 22, 1989 letter to the Patient by Dr. Lucca outlining his clinical findings, Dr. Fenichel's treatment records reflecting the problems the Patient was experiencing and Dr. Fenichel's repeated attempts at adjusting the dentistry, the Patient's x-rays, the photographs provided by the subsequent treating New Jersey dentists and/or the Patient, the Patient's written complaint, and Dr. Bliss' report. Petitioner disputed the factual allegations contained within the Administrative Complaint and a request for formal administrative hearing was filed with DOAH on or about November 5, 1990. The case was assigned DOAH Case Number 90-07729. On November 8, 1991, the Probable Cause Panel met to reconsider the case against Dr. Fenichel. The membership of the Panel had changed since Dr. Fenichel's case had last been considered. The DPR attorney indicated to the Panel that the Department did not believe that it could prevail at final hearing against Dr. Fenichel because no independent evaluation of his work could be obtained. The Department recommended a finding of probable cause with a letter of guidance issued to Dr. Fenichel. It is unclear what, if any efforts were made to contact the subsequent treating New Jersey dentist. During his presentation to the Probable Cause Panel on November 8, 1991, the DPR prosecuting attorney indicated that he had tried to contact Dr. Lucca and found him to be uncooperative. After a brief discussion, the November 8, 1991 Probable Cause Panel accepted the Department's recommendation, determined that probable cause of a violation did exist and directed the Department to close the case with a letter of guidance issued to Dr. Fenichel. A Notice of Voluntary Dismissal for DPR Case Number 89-08779, DOAH Case Number 90-07729, was filed by DPR with DOAH on November 20, 1991. The undersigned Hearing Officer entered an Order closing the DOAH file in the underlying proceeding on November 21, 1992. On November 25, 1991 Dr. Fenichel, through his attorney, received a copy of DPR's Notice of Voluntary Dismissal dated November 20, 1991. A Closing Order in DPR Case Number 89-08779 was entered by the Probable Cause Panel on or about December 16, 1991, finding that there was probable cause of a violation, but closing the case with a letter of guidance issued to Dr. Fenichel. Sometime after December 16, 1991, Dr. Fenichel, through his attorney, received a copy of the closing order issued by the Probable Cause Panel of the Board of Dentistry on December 16, 1991. The Closing Order noted: "The Department's expert consultant was unable to make a determination as to the standard of care rendered by the subject to F.P." Dr. Fenichel's Petition for Attorney's Fees and Costs was filed on January 24, 1992. The parties have stipulated that the hourly rate charged by Dr. Fenichel's counsel in the underlying case was reasonable.
The Issue The issue in this limited proceeding is whether the issuance of the Order Finding Probable Cause against Respondent affects his substantial interests and was based on an unadopted rule,1 as contemplated in Subsection 120.57(1)(e)1., Florida Statutes (2006).2
Findings Of Fact At all times material hereto, Respondent has been employed by and continuously served as the Sheriff of Orange County, Florida, since taking office in January 1993, having been elected to four successive terms. In the aftermath of the September 11, 2001, terrorist attacks, the Governor by Executive Order, later codified by the Florida Legislature, created seven Regional Domestic Security Task Forces (Task Forces) mirroring the seven FDLE geographical regions throughout the state. Members of the Task Forces were appointed by the Commissioner of FDLE. As a representative of local law enforcement, Respondent qualified, by law, for appointment as a member of one of the Task Forces created by Section 943.0312.3 Co-chairs of the Task Forces were also appointed directly by the Commissioner of FDLE. The law required that one co-chair be the FDLE special agent in charge of the operational region, the other a local sheriff or chief of police from within the operational region. The co-chairs of the Task Forces were appointed directly by the Commissioner of FDLE.4 Respondent, as Sheriff of Orange County, was appointed co-chair of Region 5 Task Force with that region's FDLE special agent in charge. Task Forces are advisory bodies to FDLE. The Task Forces also provided operational support to FDLE in its performance of functions pertaining to domestic security.5 On or about August 5, 2005, the Commission received a Complaint designated as Complaint 05-105. Complaint 05-105 was filed against Respondent in his capacity as "Sheriff of Orange County." The executive director of the Commission found that based on the information provided in the Complaint, the allegations contained therein were sufficient to warrant a preliminary investigation. An investigation was conducted by Investigator Ronald D. Moalli of the Commission, and a Report of Investigation was released on the investigation on September 5, 2006. On November 22, 2006, Respondent filed a written Response to the Report of Investigation with the Commission. Respondent's Response to the Investigation cited a number of Commission opinions ("CEOs") in support of an argument that Respondent did not have a contractual or employment relationship subject to the prohibitions of Subsection 112.313(7)(a). The response also contained a number of legal and factual arguments contending that the Report of Investigation did not support a finding of probable cause as to the allegations against Respondent. On December 19, 2006, the Advocate's Recommendation was filed with the Commission. The Advocate's Recommendation stated that based on evidence before the Commission, the Advocate recommended that there was probable cause to believe that Respondent violated five provisions of the Code of Ethics for Public Officers and Employees ("Code of Ethics"), including violations of Subsections 112.313(3) and 112.313(7)(a). The Advocate's Recommendation does not reference CEO 99-2, nor does it reference any statements contained in that advisory opinion. On January 9, 2007, Respondent filed a written Response to the Advocate's Recommendation. On January 26, 2007, during its executive session, the Commission conducted a hearing to determine probable cause in this case. Probable cause hearings before the Commission are not conducted ex parte as in some agencies. Rather, in addition to materials submitted by the parties, oral argument is permitted. However, the Commission does not give Respondents notice of Chapter 120 rights, and due process rights do not attach until after probable cause is found. § 112.324(3), Fla. Stat. At the probable cause hearing, the Commission had before them the Complaint, the Report of Investigation, Respondent's Response to the Report of Investigation, the Advocate's Recommendation, and Respondent's Response to the Advocate's Recommendation. Fla. Admin. Code R. 34-5.006(5). In addition to the foregoing, the Advocate and counsel for Respondent made oral arguments at the probable cause hearing. The Advocate argued: There's a suggestion in the response [of Respondent] that this wasn't his agency, that his only agency was the sheriff's office. I've got some materials. I've spoken to Mr. Herron about this, and I believe he would concur, that for purposes. . . . I am citing CEO 99-2. For the purposes of these two provisions, and they're talking about subsection (3), the doing business with prohibition, and subsection (7), the contractual conflict prohibition. The Commission has said for purposes of these two provisions, we must determine the agency of the advisory board members. And then they speak of two other opinions. We reiterated our view that in determining an individual's agency for purposes of the Code of Ethics, an advisory board to a governing body is part of that body. So, being on the task force, [Respondent's] agency was FDLE. That's the point. At the probable cause hearing, following the argument of the Advocate and counsel for Respondent, the Commission voted to accept the recommendation of the Commission's Advocate with respect to four of the five violations of the Code of Ethics. On January 31, 2007, the Commission issued the Order Finding Probable Cause to believe that Respondent violated four provisions of the Code of Ethics. Respondent alleges the Commission relied on and based the findings of probable cause to believe that Respondent violated Subsections 112.313(3) and (7)(a) on the following statement in CEO 99-2. [I]n determining an individual's "agency" for purposes of the Code of Ethics, an advisory board to a governing board is part of that body. Under existing law, CEO 99-2 is not binding on Respondent.6 Arguments of counsel are not binding on the Commission. Moreover, the Advocate's arguments to the Commission are not rules. None of the written documents before and available to the Commission at the probable cause hearing, refer to or mention CEO 99-2 or the application of that advisory opinion. In its Order Finding Probable Cause, the Commission ordered, in accordance with Chapter 120 that a public hearing be held on the allegations set forth in the Order Finding Probable Cause. On or about April 19, 2007, the Commission referred Complaint 05-105 to DOAH and requested a formal administrative hearing and to enter a recommended order regarding whether Respondent violated the Code of Ethics as alleged by the Order Finding Probable Cause. Two of the four allegations set forth in the Order Finding Probable Cause material to this segment of the proceeding state that Respondent violated: Section 112.313(3), Florida Statutes, by doing business with his own agency. Section 112.313(7)(a), Florida Statutes, by having employment or contractual relationship with a business entity or entities doing business with Respondent's agency . . . . As of the date of this proceeding, the public hearing on the Complaint had been stayed pending the outcome of this proceeding and of an appeal of a discovery matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered on this part of the proceedings only, finding that: (1) Respondent, Kevin Beary, failed to show that the issuance of the Order of Probable Cause against him affects his substantial interests and was based on an unadopted rule, as contemplated by Subsection 120.57(1)(e)1.; and (2) dismissing Respondent's Amended Motion to Invalidate Agency Action Based on Unpromulgated Rule. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 11th day of August, 2008.
Findings Of Fact Petitioner is seeking attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. This matter relates to the administrative proceeding in Division of Administrative Hearings Case No. 94-2941. Respondent, a state agency, initiated the underlying cases, ACHA Case Nos. 90-08689 and 90-08804. Respondent was more than a nominal party in these cases. The attorney's fees that Petitioner seeks are reasonable in amount. The statutory cap of $15,000.00 applies. Petitioner did not employ more than 25 full-time employees. His net worth did not exceed $2,000,000 at the time Respondent initiated the underlying action. Respondent initiated state action against Leonard E. Masters, M.D. in his individual capacity. Respondent did not initiate state action against Petitioner's professional corporation, L. E. Masters, M.D., P.A. Therefore, Petitioner is entitled to an award of attorney's fees and cost only if he was employed as a sole proprietor of a professional practice in 1993 when Respondent initiated the underlying action. Petitioner is a licensed physician who has practiced as a sole proprietor of a unincorporated professional association since 1961. For tax year 1993, Petitioner filed a Schedule C, Profit or Loss from Business, with his federal joint income tax return. As reflected in that return, Petitioner earned a substantial portion of his 1993 income as a sole proprietor of a professional practice. L. E. Masters, M.D., P.A., is an active professional corporation organized under the laws of the State of Florida on December 17, 1992. However, there is no evidence that Petitioner earned any income or business profit as an employee of his professional corporation in 1993. The mere existence of this corporation does not preclude Petitioner from practicing medicine as a sole proprietor of an unincorporated professional association. During discovery, Respondent requested that Petitioner furnish the name and address of his alleged sole proprietorship of an unincorporated business from 1990 through the present. Petitioner answered this inquiry as follows: L. E. Masters, M.D., P.A. since 1961 North Beaches Family Practice 100 Royal Palm Drive Atlantic Beach, Florida Petitioner's professional corporation was not created until 1992. This answer is not persuasive evidence that Petitioner worked solely as an employee of his professional corporation in 1993. The greater weight of the evidence indicates that, at all times relevant hereto, Petitioner was a "small business party" as defined in Section 57.111, Florida Statutes. Prior to the Probable Cause Panel meeting of December 7, 1993, Respondent forwarded to the panel members the entire investigative file, including all applicable medical records, and the written opinions of experts Neville Marks, M.D., and Reynold Stein, M.D. Each Panel member received and reviewed the materials prior to the Probable Cause Panel meeting. Present at the December 7, 1993 Probable Cause Panel meeting were panel members Robert Katims, M.D., Chairman of the Panel, and Martin Fenwick, M.D. Also present were Allen Grossman, Assistant Attorney General and counsel for the Board of Medicine's Probable Cause Panel and Fred Whitson, Senior Attorney for the agency. Prior to the consideration of any cases, Mr. Grossman advised the panel members that any questions concerning the interpretation of the law or rules, or what the panel's duties were, should be directed to him. Mr. Grossman also advised the panel that questions about the facts of the case, or the agency's recommendation should be directed to Mr. Whitson. Mr. Whitson proceeded to discuss the specific facts of the case. He reviewed the medical history of the four alleged victims described in the proposed Administrative Complaint. The panel voted unanimously to find that probable cause existed to charge Petitioner with violating Section 458.331(l)(t), Florida Statutes, as set forth in the proposed Administrative Complaint. The panel documented its finding of probable cause in a memorandum signed by the Chairman of the Panel. During the probable cause proceeding, the panel considered the reports of two medical experts which support the allegations in the Administrative Complaint. One of those experts, like Petitioner, was a board certified family practice physician. The other was a psychiatrist. Both had experience in treating chemical dependency in adults. Both of Respondent's medical experts opined that Petitioner's treatment of four patients for chronic pain fell below the applicable standard of care. These opinions concluded that each patient had complicated medical, psychological, and/or chemical dependancy problems. The experts were especially critical of Petitioner's attempt to diagnose, treat, and manage the chronic pain of the patients with narcotic drugs but without the benefit of consultations with a psychiatrist or a chemical dependency specialist (addictionologist). Respondent was substantially justified in relying on the opinions of these experts, the patient's medical records and investigative reports to support the allegations in the Administrative Complaint even though they did not prove to be persuasive at hearing. After the formal hearing in the underlying case, the greater weight of the evidence indicated that Petitioner did not violate the applicable standard of care in his treatment of the four patients. This conclusion was reached after consideration of all the testimony and evidence presented at hearing. It did not mean that Respondent lacked a reasonable basis in law and fact for alleging that Petitioner violated Section 458.331(1)(t), Florida Statutes.
Conclusions Ms. Jackson had a legal duty to yield the right-of-way to Claimant. Because Ms. Jackson was acting in the course and scope of her employment at the time of the crash, the Department shared that duty. Ms. Jackson breached the duty by turning in front of Claimant's vehicle and the breach was the proximate cause of the collision and the injuries to Claimant that resulted from the collision. Whether Ms. Jackson was impaired by drugs at the time of the crash was not an issue presented in the trial court because liability was admitted by the Department. I conclude that whether Ms. Jackson was impaired by prescription or other drugs at the time of the crash is also irrelevant in this claim bill proceeding and, even if it were relevant, the evidence is insufficient to make a finding on that issue. I am persuaded that Claimant was not dishonest in her application for Social Security disability benefits and, therefore, there is no basis to doubt her credibility regarding the injuries she suffered in the crash. However, I believe the jury award is too high in the context of this claim bill, even when Claimant's unique situation with muscular dystrophy is taken into account. Claimant's counsel argued before the trial court that the law in Florida is that a jury verdict should not be disturbed by the court unless "it is so inordinately large as obviously to exceed the maximum reasonable range within which the jury may reasonably operate," citing Kaine v. Government Employees Insurance Company, 735 So. 2d 599 (Fla. 3d DCA 1999). He also emphasized that it was not the role of the judge to "assume the role of the seventh juror." However, that law is applicable to a trial judge's review of a jury award on a defendant's motion to reject or reduce the award. This claim bill process, on the other hand, involves a de novo proceeding in which I am rightfully assuming the role of a new jury. Furthermore, the payment of a claim bill is a matter of legislative grace and the Senate, unlike the trial court judge, is free to deviate from the jury award. It is reasonable for the Senate, in determining whether to pay a claim in excess of the sovereign immunity cap, to consider whether the jury award deviates substantially above or below the usual award for similar injuries. Claimant's attorney presented a number of examples of jury awards in excess of $5 million, but almost all of the cases involved paraplegia or amputation. There might be cases involving severe leg fractures, like the one suffered by Claimant, in which the jury awarded $5 million or more to the plaintiff. However, while no calculation was attempted by the parties or by me to determine the average or median jury award in cases involving severe leg fractures, using the legal reference books that compile and discuss jury verdicts, it appears that the vast majority of jury awards for severe fractures are significantly less than $5 million and closer to $1 million. Claimant made much of her determination before the 1999 crash to not let her muscular dystrophy prevent her from enjoying life fully. If Claimant dedicates herself just as enthusiastically to making the most of her present physical predicament as she did in the past, I believe her future quality of life can be much better than the one she predicted for herself at the claim bill hearing. Although Claimant deserves to be compensated for the injuries she suffered through the negligence of the Department's employee, I think a more reasonable award, taking into account the more common jury awards for severe limb fractures and the special circumstance of Claimant's muscular dystrophy, would be $3,000,000. ATTORNEY’S FEES AND LOBBYIST’S FEES: Claimant's attorneys agree to limit their fees to 25 percent of any amount awarded by the Legislature as required by s. 768.28(8), F.S. They object to the provision of the bill that limits attorney’ fees, lobbying fees, and costs to 25 percent of the award. Claimant’s attorneys report costs of $51,866. They propose a lobbyist's fee that would be an additional 6 percent of the award. The Florida Supreme Court held in Gamble v. Wells, 450 So. 2d 850 (1984) that the Legislature allows compensation pursuant to a claim bill “as a matter of grace” and it can determine the conditions to be placed on the appropriation. The Court specifically held that parties cannot enter into contracts, such as fee agreements, that bind the state in the exercise of its sovereign immunity. LEGISLATIVE HISTORY: Claim bills for Laura Laporte were first filed in the 2003 Session and have been filed in each session thereafter. A hearing was held before a Senate Special Master in 2002, but no report was issued. RECOMMENDATIONS: The claim bill should be amended to reduce the claim to $3,000,000. For the reasons set forth above, I recommend that Senate Bill 34 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Al Lawson Representative Stan Mayfield Faye Blanton, Secretary of the Senate Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Michael Kliner, House Special Master Counsel of Record
The Issue The issue is whether Petitioner, as a prevailing small business party in an administrative action, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111(4)(a), Florida Statutes.1
Findings Of Fact Petitioner is a licensed physician in the State of Florida, having been issued license number ME 0027368. The parties by their response or by stipulation agreed that this matter was filed pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.031, Florida Administrative Code; that the actions in AHCA Case No. 95-03216 were initiated by the Agency for Health Care Administration, an agent for Department of Health, a state agency; that the Agency is not a nominal party only; that the attorney's fees sought by Petitioner are reasonable in the amount up to $15,000.00 and that the statutory cap of $15,000.00 applies; and that the Petitioner prevailed in the underlying case. Respondent also stipulated that it was aware of no circumstances that exist which would make the award unjust. Petitioner, Adolfo Cardenas Dulay, M.D., is a small business party within the meaning of Section 57.111, Florida Statutes. The Administrative Complaint in DOAH Case No. 97-3103 was filed March 26, 1997, against Petitioner. The Complaint alleged Petitioner's failure to recognize the severity of a patient's condition by directing an ambulance to another facility, failing to keep records regarding the patient's condition, failure to treat a hypertensive emergency and very high heart rate, failing to document an order for Procardia and the decision to transfer a patient, failing to keep written records justifying the course of treatment of a patient, and failing to practice medicine at a level accepted by prudent similar physicians under similar conditions and circumstances. Pursuant to Section 455.225, Florida Statutes, Petitioner was notified of the investigation and invited to submit a response to the allegations. Petitioner and his attorney, submitted a letter from an attorney dated August 8, 1995. This was the only response provided by Respondent to the allegations. Petitioner chose not to present any expert opinions to the Probable Cause Panel. The Probable Cause Panel that considered this matter was composed of two physicians, who were or are, Board of Medicine members and a consumer member of the Board of Medicine, as required by statute. Present at the March 20, 1997, meeting of the Probable Cause Panel were Panel members Robert Katims, M.D., Chairman of the Panel; Becky Cherney; and Louis C. Murray, M.D. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Investigations; and Deborah Marshal, Administrative Assistant, Agency for Health Care Administration. Prior to the Probable Cause meeting of March 20, 1997, the members of the Probable Cause Panel received the entire investigative file, including all medical records and the expert opinion of Dr. Blanchar offered by Respondent. The only expert opinion available to the Probable Cause Panel on March 20, 1997, was that of Dr. Richard W. Blanchar, who admitted that he had not engaged in a similar practice of emergency medicine since 1989, eight years before this matter was considered. However, Dr. Blanchar did have sufficient experience in emergency medicine to qualify as an expert witness. The lack of recent practice goes to the weight given Dr. Blanchar’s opinion. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the panel that the responsibility of the attorney for the Agency is to explain the facts of the case, the reason why the Agency is making the recommendation, and to answer any questions concerning those facts in the recommendation or investigation. The Probable Cause Panel members discussed this matter, reached a determination, and voted for a finding of Probable Cause for alleged violations of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes. On March 20, 1997, the Probable Cause Panel issued a memorandum stating: This matter was brought before the Probable Cause Panel membership composed of Robert Katims, M.D., Chairperson and Louis C. Murray, M.D. and Becky Cherney on the date set forth above. The Panel, having received the investigative report, having carefully reviewed that report, having reviewed the recommendation of the Agency, and having had the opportunity to inquire of counsel and being otherwise duly advised in the premises thereof, find that: Probable Cause was found on the following statutory and rule grounds, including but not limited to Sections 458.33(1),(t), and (m), Florida Statutes. Moreover, it is clear from the record in the underlying case that the evidence regarding diagnosis and appropriate treatment of the patient were in dispute. Dr. Blanchar was found to have sufficient qualifications as an expert in this matter. Dr. Dulay's experts and their expertise and opinions clearly outweighed those of the Department's expert and the issue was resolved in Dr. Dulay's favor. However, there was a dispute of fact in this case and the Department clearly had sufficient cause to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs.
The Issue The issue is whether Petitioners are entitled to an award of attorney’s fees, costs, and/or interest related to the hearing officer’s award of corrective payments on remand after the decision in French v. Department of Children and Families, 920 So. 2d 671 (Fla. 5th DCA 2006).
Findings Of Fact Parties Sarah is almost 23 years old, and she is severely disabled. Her disabilities include quadriplegic cerebral palsy, developmental delay, severe osteoporosis, severe muscle spasms, scoliosis, incontinence, kidney stones, and frequent urinary tract infections. Sarah requires 24-hour assistance with all daily living functions, including bathing, feeding, dressing, brushing her teeth, and changing her diapers. Ms. French is Sarah’s mother. She is approved by the Agency to provide personal care assistance (PCA) services to Sarah under the CDC+ program. The Agency has administered the CDC+ program since October 1, 2004. Prior to that, the program was administered by DCF. Background Sarah applied for the CDC+ program in July 2002, and was enrolled in the program in October 2002. Prior to that, Sarah was enrolled in the Home and Community Based Developmental Services (HCBS) program pursuant to which she received PCA services from outside providers, rather than her mother. Sarah’s initial support plan under the CDC+ program funded only six hours per day of PCA services. The plan was increased to 12 hours per day of PCA services in August 2003 after Sarah successfully appealed her initial support plan to a DCF hearing officer. On October 31, 2003, DCF unilaterally disenrolled Sarah from the CDC+ program based upon its determination that Ms. French had a back condition that prevented her from providing PCA services to Sarah. Thereafter, Sarah was reenrolled in the HCBS program, which required her to hire someone other than her mother to provide her PCA services. Ms. French was paid for the period of November 1-15, 2003, even though Sarah was no longer enrolled in the CDC+ program at the time. For that period, however, Ms. French was paid for only six hours per day of PCA services (at $17.50 per hour) rather than the 12 hours per day required by Sarah’s support plan. Ms. French stopped receiving payment under the CDC+ program on November 16, 2003. She began receiving payment again on April 1, 2005, when, as discussed below, Sarah was reenrolled in the CDC+ program. Ms. French has been paid for 12 hours per day of PCA services (at $17.50 per hour) since April 1, 2005. Sarah timely filed an appeal of DCF’s decision to disenroll her from the CDC+ program, but the appeal was not docketed and referred to a DCF hearing officer until January 2004. The hearing officer held a hearing on the appeal over a period of eight days between March 22 and August 5, 2004. The length of the hearing was attributable, at least in part, to the fact that the hearing officer was not a lawyer, and she allowed both parties to present extensive testimony and evidence on matters seemingly unrelated to the central issue in the appeal, i.e., whether Ms. French had a back condition that prevented her from providing PCA services to Sarah. The hearing officer’s Final Order, dated November 22, 2004, concluded that Sarah should not have been disenrolled from the CDC+ program because DCF failed to prove that Ms. French had a back condition that prevented her from providing PCA services to Sarah. The Final Order did not award retroactive corrective payments to Sarah for the period that she was wrongfully disenrolled from the CDC+ program, and it denied Sarah’s request for an award of attorney’s fees and costs. Sarah appealed the Final Order to the Fifth District Court of Appeal. DCF did not cross-appeal. Sarah was reenrolled in the CDC+ program on April 1, 2005, while the appeal was pending. The record does not reflect why Sarah was reenrolled on that date, which is more than four months after the hearing officer’s Final Order. The appellate court issued its opinion on January 6, 2006, and held that Sarah was entitled to corrective payments from DCF1 retroactive to the date that she was disenrolled from the CDC+ program. The court remanded the case to the DCF hearing officer to determine the amount of corrective payments due to Sarah. The court was clear as to the scope of the remand; it held: In summary, both [federal and state law] require remand for the hearing officer to order corrective payments retroactive to October 31, 2003. We believe the amount of corrective payments can be determined based upon the evidence provided at the original hearing, but the hearing officer may take additional evidence on the issue, if necessary. (Emphasis supplied) The court also awarded attorney’s fees against DCF for the appeal. The court remanded the issue of the amount of appellate fees, and the issue of Sarah’s entitlement to attorney’s fees for the underlying DCF hearing, to DOAH for determination because, according to the court, the hearing officer did not have jurisdiction over those issues since the applicable attorney's fee statute refers only to Administrative Law Judges. DCF filed a motion for rehearing, which was denied by the court on February 10, 2006. The mandate was issued by the court on March 1, 2006. Sarah was the prevailing party in the proceedings that culminated in the appeal. The Agency paid Sarah $129,595 in attorney’s fees and costs related to the proceedings that culminated in the appeal.2 Remand Proceeding On April 7, 2006, over a month after the mandate was issued by the appellate court, the DCF hearing officer entered an Order accepting the remand and directing the parties to advise her if the retroactive payments mandated by the court had been made. The Order required Sarah to provide invoices to the Agency reflecting the monthly timesheets for the “retroactive periods,” and required the Agency to respond to the invoices and identify any disputes. The Order stated that a hearing would be set if necessary to resolve any dispute regarding the amount of the retroactive payment. On April 19, 2006, in compliance with the hearing officer’s Order, Sarah filed monthly invoices and a demand for payment totaling $211,312.50, “exclusive of interest and attorney’s fees.” The invoices sought payment for an additional six hours per day of PCA services from July 2002 (when Sarah applied for the CDC+ program) to November 15, 2003 (when Ms. French stopped receiving payment for six hours per day of services); payment for 12 hours per day of PCA services from November 16, 2003, to March 31, 2005 (the period during which Ms. French received no payment); and payment of half of those hours at the overtime rate of $26.25 per hour instead of the standard rate of $17.50 per hour. The Agency responded to the demand for payment in a status report filed with the DCF hearing officer on May 26, 2006. In the status report, the Agency took the position that, consistent with the appellate court’s decision, the amount of corrective payments owed to Sarah is limited to the period of disenrollment -- October 31, 2003 through March 31, 2005 -- and that the amount should be calculated based upon the approved hourly rate of $17.50 with no overtime pay. The Agency, therefore, requested the DCF hearing officer to “enter an order finding $97,230 as the appropriate amount of compensation due as the corrective action ordered by the Fifth District Court of Appeal.” Sarah filed a reply to the Agency’s filing on June 26, 2006, in which she continued to assert that the corrective payments were not limited to the disenrollment period and that overtime pay was due. The reply also claimed that the Agency “is proving itself to be the scofflaw that the general public believes it to be,” and it requested imposition of attorney’s fees against the Agency because of its “continued delays and its attempts to starve out Ms. French.” The hearing officer set the matter for hearing because the parties were not in agreement regarding the amount of corrective payments owed. The hearing was scheduled for and held on July 17, 2006. The transcript of the July 17, 2006, hearing is not part of the record of this DOAH proceeding. Therefore, the record does not reflect the substance of the testimony presented or the nature of the evidence received at that hearing. The hearing officer entered the Remand Order on September 29, 2006. The Remand Order rejected the argument that Sarah is entitled to corrective payments for periods prior to October 31, 2003; rejected the argument that Ms. French is entitled to overtime pay; implicitly rejected the argument that “prejudgment interest” is to be included as part of the corrective payments to Sarah; concluded that DOAH (and not the DCF hearing officer) has jurisdiction to consider Ms. French’s request for interest based upon “the failure of [DCF] to process payment in a timely manner”; and awarded $105,420 in corrective payments to Sarah. The Remand Order was not appealed by either party. It was not until entry of the Remand Order that the amount of corrective payments due to Sarah was established with certainty. The Agency worked diligently after entry of the Remand Order to process the payment due to Sarah. The payment was made through a check dated November 8, 2006, which is 40 days after the date of the Remand Order. Petitioners did not prevail in the Remand Proceeding because the hearing officer rejected each of the substantive arguments they presented in the Remand Proceeding. The fact that the hearing officer awarded Sarah approximately $8,000 more than the Agency calculated that she was due in its pre-hearing status report does not make Sarah the prevailing party in the Remand Proceeding. The award was approximately half of what Sarah claimed she was due, and the difference in the amount calculated by the Agency ($97,230) and the amount awarded in the Remand Order ($105,420) was not the result of the hearing officer using the calculation methodology advocated by Sarah. Instead, the difference resulted from the hearing officer using the actual number of calendar days that Sarah was disenrolled, rather than calculating the number of days by multiplying the number of months Sarah that was disenrolled by the 28 days of service per month that were approved in Sarah’s support plan. There is no persuasive evidence that the Agency participated in the Remand Proceeding for an improper purpose, as alleged by Petitioners. Indeed, the evidence establishes that the primary reason that it was necessary for an evidentiary hearing to be held in the Remand Proceeding was the excessive and unreasonable demand made by Sarah in her initial response to the hearing officer’s Order accepting the remand from the appellate court. The Agency’s refusal to pay that amount was clearly reasonable and appropriate under the circumstances. To the extent that Petitioners are complaining about having to go through additional proceedings on remand at all when the appellate court observed that the amount of corrective payments could likely be determined based upon the evidence provided at the original hearing, that complaint focuses on the conduct of the DCF hearing officer, not the Agency. It is noted, however, that the appellate court stated that “the hearing officer may take additional evidence on the issue, if necessary.” This DOAH Proceeding Petitioners initiated this proceeding by filing the Petition with the Agency. The Agency referred the Petition to DOAH because according to the referral letter, “the Agency is without authority to determine or award attorney’s fees available under Chapter 120, Florida Statutes.” The Petition requests an award of attorney’s fees and costs, both for the Remand Proceeding and for this DOAH proceeding. The Petition also requests an award of prejudgment interest as part of the corrective payments as well as post- judgment interest on the corrective payments ordered in the Remand Order. The Agency disputes Petitioners’ entitlement to attorney’s fees and costs for this proceeding or the Remand Proceeding. The Agency also disputes Petitioners’ entitlement to interest, either as part of or on the corrective payments. There is no evidence that the Agency participated in this DOAH proceeding for an improper purpose. The Agency had a legitimate basis for its opposition to the Petition giving rise to this proceeding, as shown by the fact that the Agency prevailed in this proceeding. The unreasonable demands made by Petitioners at the outset of the Remand Proceeding (and at the outset of the prior attorney’s fee case, see Endnote 2) did little to bring the litigation between the parties to an just and speedy end and, indeed, likely had the opposite effect. That said, the evidence is not persuasive that Petitioners participated in this DOAH proceeding for an improper purpose.
The Issue The sole issue for determination in this cause is whether the failing grade received by petitioner from Professor Kenneth Vinson in a constitutional law course was a result of arbitrariness, capriciousness or bad faith.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: while enrolled as a student in the Florida State University College of Law, petitioner received a failing grade in constitutional law for the winter quarter of 1975 from his professor, Kenneth Vinson. After discussing his grade with Mr. Vinson, petitioner filed an appeal pursuant to the grade appeal policy of the College of Law. A board comprised of three students determined that there was probable cause for the grade appeal and recommended that the appeal be referred to a full committee for hearing. After some delay apparently resulting from the loss of the report of the student board, a committee consisting of two students and three faculty members was appointed. Mr. Vinson did not attend the hearing, but submitted to the committee a memorandum, attaching thereto a completed examination paper with his written comments concerning the answers given. Petitioner appeared and offered testimony concerning his grade. The committee was also supplied with five or six other completed examinations with grades ranging from "A" to "F". These exams were copied in such a manner that neither the student involved nor the grade assigned were known to the committee. The five members of the committee rated these exams and substantially agreed with the grades assigned by Vinson to each paper. Each member of the committee placed petitioner's exam in the "F" category. In its final report, the committee expressed concern with Vinson's lack of sufficient assistance to them in the articulation of his standards and his lack of cooperation in the grade appeal process. Nevertheless, it was the conclusion of the committee that petitioner's appeal should be denied for the reason that Vinson had recognizable standards of grading and that there was no gross deviation in the application of his standards to petitioner's examination paper. The committee's findings are more fully set forth in a ten page decision which was admitted into evidence at the hearing as Exhibit 3. The examination in dispute is a 38-question, short answer exam, a type traditionally and frequently administered in law school courses. In this type of examination, the objectives of the professor are inherent in the examination questions asked. The weight to be assigned each question on such an examination is not always determined by the professor before grading the papers. A cut sheet or master list of desired answers is difficult to prepare for an essay- type examination in law school. As well as evaluating the student's ability to identify the issues involved in a legal problem, the law school professor also seeks to evaluate the student's knowledge of the substantive law relating to an issue. Thus, if a student deviates from the projected issue, he may lose credit for that but gain credit for a good discussion of the erroneously-selected issue. Often, the law professor is seeking a judgmental or subjective response to a question on an examination. In such situations, the preparation of a master answer to all questions would be futile. Among educators, there appears to be no uniform methodology for grading examinations. Those educators often referred to as behaviorists advocate specific written standards and objectives both for evaluation purposes and to facilitate the student's learning. Others referred to as humanists object to a specific statement of objectives and standards, feeling that such would be too limited and constrictive. The difficulty with a non-written, personal approach to evaluation is the assessment of its validity and replicability as to time and another student. One method of testing the reliability of the grading procedure utilized is to have other persons assign a grade to the completed examination. If two or more persons were to assign the same grade as that originally assigned, this would provide replicability and would indicate that the original grade assigned was reasonable and the method of evaluation was reliable. As noted above, the specific statement of standards and objectives is not universally employed by educators, and its nonuse does not imply unethical behavior or that one's teaching methods are invalid. Professor Vinson has been teaching law school courses for over seven years. It was his testimony that, although the mandatory blind or anonymous grading system was not in effect at the time he graded Petitioner's examination, he in fact did not know whose paper he was grading at the time he assigned a grade to Petitioner's paper. All exam papers were graded by him anonymously. Vinson's method of grading was to review five or six exam papers, get a "feeling" for the type of responses received, assign tentative grades to them and then perhaps change those grades based on his conception of the total class curve. He does not find that a cut sheet or set of model answers is helpful in a short essay type examination. When evaluating a paper for grading purposes, Mr. Vinson stated that he compares students' answers with each other and forms an opinion of the student's understanding of the subject matter and class discussions. When grading papers, he also looks at the students' writing style, knowledge concerning the substance of the course, and understanding of legal processes. He further evaluates the student's ability to recognize issues, manipulate legal jargon and apply cases studied and discussed during the course. Vinson applied the same criteria or standard of evaluation to petitioner's examination as he applied to other examinations. The ultimate grade assigned each paper constituted Vinson's value judgment, based upon his experience as a law school professor, as to that student's knowledge concerning the substance of the course taught by him. While Vinson has no written standards or criteria for evaluating a student's performance on an examination, he feels that his standards are implicit in classroom discussions and that the questions asked on his examinations form the answers to be given. The failing grade assigned to petitioner's examination was a result of Vinson's opinion of petitioner's understanding of the subject matter of the course taught.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's amended petition be dismissed. Respectfully submitted and entered this 17th day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1976. COPIES FURNISHED: President Stanley Marshall Florida State University Tallahassee, Florida 32306 Stanley C. Kiser 3220 Jim Lee Road Tallahassee, Florida 32301 Robert D. Bickel University Attorney Suite 309 Westcott Florida State University Tallahassee, Florida 32306 John D. Carlson State Board of Education 400 Barnett Bank Building Tallahassee, Florida 32304
