Findings Of Fact Respondent Bard Opsahl is an employee of his father's corporation, Respondent John G. Opsahl, Inc. September 22, 1994, Respondent Opsahl was driving a truck of Respondent John G. Opsahl, Inc. He had just acquired a load of dirt from a pit and had turned north on Taylor Road from Jones Loop Road. On the east side of Taylor Road, immediately north of the Jones Loop Road intersection, there was a sign marked "Weight Limit." A sign beside the "Weight Limit" sign warned that a weight-limited bridge was ahead. The Weight Limit sign contained profiles of three trucks and three tractor-trailer combinations. Each of the profiles displayed a number of axles. Beside four of the profiles were numbers followed by "Ts," which indicates tons. The bottom profile was of a five-axle tractor-trailer. Next to it was a 22-ton limit. The next profile from the bottom was of a four-axle, cab-over- engine tractor-trailer, which bore an 18-ton weight limit. The next profile was of a three-axle tractor-trailer, which bore a 22-ton weight limit. The next profile was of a four-axle truck, which bore a 15-ton weight limit. The top two profiles were of a two-axle truck and a three-axle truck. What appeared to be a piece of wide, white tape ran between the numbers and the "T's" down the entire length of the sign. Beside the top two profiles, another piece of tape obscureed the numbers, so that they could not be read. Based on the Load Report Citation, Respondent Opsahl was driving a three-axle truck (i.e., without a trailer). The weight limit for this type of vehicle was one of the two that was obscured. There was no Weight Limit sign at the bridge itself on the day in question. Respondent Brad Opsahl drove his vehicle across the bridge on Taylor Road north of Jones Loop Road. There are two facts adverse to Respondents. First, the tape on the Weight Limit sign did not appear to invalidate all weight limits, especially in view of the sign next to it warning of a "bridge weight restriction ahead." In other words, Respondent Brad Opsahl should have understood that the bridge was a weight-limited bridge. Second, Respondents' truck weighed 59,800 pounds, or 30 tons, which exceeded the highest limit posted on the Weight Limit sign. Although Respondent Opsahl was a young, relatively inexperienced driver, it is inconceivable that he would think that a three-axle truck could better distribute a load than a five- axle tractor-trailer combination without a cab-over-engine. The limit for the latter vehicle, which was the highest visible limit, was 22 tons. Respondents have already paid the fine of $1290 cited in the citation.
Recommendation It is hereby RECOMMENDED that the Commercial Motor Vehicle Review Board enter a final order imposing a penalty against Respondents in the amount of $790 and refunding $500 of the $1290 already paid by Respondents. ENTERED on June 13, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as subordinate. 4-5: adopted or adopted in substance. 6: rejected as recitation of evidence. 7: rejected as irrelevant. 8: rejected as recitation of evidence. 9-13: rejected as subordinate and recitation of evidence. Rulings on Respondent's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9: adopted or adopted in substance as to amount paid. The amount of the recommended refund is different. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Cindy S. Price Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399 John L. Polk John L. Polk, P.A. P.O. Box 1221 Punta Gorda, FL 33951-1221 Commercial Motor Vehicle Review Board 1815 Thomasville Road Tallahassee, FL 32303-5750
The Issue Whether Respondent, The Meltdown on 30A (“The Meltdown”), discriminated against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott (collectively, the “Petitioners”), in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact The Meltdown is a restaurant operated out of a 23-foot- long Airstream trailer. It does not have tables and chairs for customers to consume their meals; it is a “to go” establishment. The trailer can comfortably hold about five people when it is in operation. The Meltdown operates on Highway 30A (hence its name) and is generally parked near the beach in Seaside, a tourist area. The Meltdown serves between 500 and 700 sandwiches per day. The restaurant is one of five owned by Mr. Shirley and managed by Mr. Haile. In February 2016, The Meltdown switched its payroll functions from Oasis to ECB. The change resulted also in a new method of signing in, on-line, by which employees were able to be paid. D’Shante L. LeBeaux is an African-American woman. At final hearing, she claimed to have a disability, but did not raise that as a basis for the discrimination claim against The Meltdown. She began working for The Meltdown in June 2016. She voluntarily left her employment when her means of transportation, Latanya Scott, resigned around August 19, 2016. While working for The Meltdown, Ms. LeBeaux was never written up or disciplined for missing work or performing poorly. Ms. LeBeaux did not cite any instance of discriminatory actions or words by her employer. She claimed that the manner in which her schedule was handled, i.e., that she did not always work the same hours as Latanya Scott, constituted discrimination. The testimony was not persuasive. Latanya Scott is an African-American woman. She is married to Erin Scott, an African-American woman. Latanya Scott was hired on June 24, 2016. On August 10, 2016, she provided a letter to The Meltdown which stated her intent to resign as of August 19, 2016. As of that date, she voluntarily ceased working for The Meltdown. Her reason for resigning was, primarily, that Mr. Haile had not shown any compassion when Latanya Scott’s grandmother got sick (and ultimately passed away). While working at The Meltdown, Latanya Scott was written up for being belligerent to other employees. She was passed over when a manager, Carolyn Bramlett, left her position and a new manager was needed. No one was hired, however, to replace Ms. Bramlett; Mr. Haile simply took over the responsibilities himself. Erin Scott is an African-American woman and is the wife of Latanya Scott. She was hired at The Meltdown on May 29, 2016, and continues to work there. She cited to no discriminatory actions by The Meltdown, but suggested that other related couples may have been treated somewhat differently than were she and her wife. Her complaints were neither confirmed nor deemed discriminatory. Erin Scott continues to work in a supervisory capacity for The Meltdown and is considered a good employee. Each of the Petitioners stated that they never received an employee handbook until recently, i.e., during the pendency of this administrative hearing. They never saw, therefore, the nepotism policy set forth in the handbook. The owner and manager maintain that all employees are given the handbook when they “signed in” as an employee the first time. Based upon the facts of this case, whether or not the Petitioners were provided an employee handbook or knew about the nepotism policy is essentially irrelevant to their claims of discrimination. There were a number of family members working at The Meltdown when Mr. Haile first began managing. When ECB came in, a nepotism policy was enacted that prevented any further employment of family members. The family members who were already there were grandfathered in, i.e., they were not asked to resign. Mr. Haile does not remember Ms. LeBeaux raising the issue of a disability at the time of her hiring. She did begin asking for fewer hours, no more than 25 per week, at some point and Mr. Haile tried to accommodate her. He learned that she and Latanya Scott were riding together, which created a small problem, but he attempted to work around that issue as well. Mr. Shirley operates all of his restaurants without tolerating discrimination or harassment. His credible testimony was that the Petitioners seem to have a problem with how the restaurant was managed rather than having a complaint about discrimination. He genuinely appears to care about his employees and to wish to do the right thing vis-à-vis his employees. In short, there was no credible or persuasive evidence of discrimination against Petitioners by The Meltdown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, The Meltdown on 30A, did not discriminate against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott, and their Petitions for Relief should be denied. DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) D'Shante LaCheryl LeBeaux Apartment B 190 Patrick Drive Defuniak Springs, Florida 32433 (eServed) Timothy Tack, Esquire Miller Tack & Madson Suite 135 3550 Buschwood Park Drive Tampa, Florida 33618 (eServed) Erin M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Latanya M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.
Findings Of Fact On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I- 95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc. DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1990. APPENDIX The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent. Respondent The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Paul F. Tecklenburg, Esq. Post Office Box 1430 Charleston, South Carolina 29401 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458
Findings Of Fact Raymond Jennings is a career service employee employed in the custodial department at the University of South Florida Medical Center. During the period between June 1, 1976 and September 30, 1977 Jennings used 91 days sick leave, 21 of which were due to a job related injury. Jennings earns 13 days sick leave per year. He was counselled numerous times by his supervisor for tardiness as well as absenteeism. Due to excessive absences he was placed on special evaluation in January, 1977. By letter dated March 9, 1977 Jennings was advised that his superior feels no improvement was shown and that a second special evaluation would be given in sixty days. (Exhibit 1, p. 23). Performance appraisals during this period reflect continued absenteeism. On September 1, 1977 Jennings was issued a written reprimand for absences on August 26 and 28, 1977. On September 28, 1977 Jennings was again given a written reprimand for habitual tardiness and excessive absenteeism. On September 29, 1977 Jennings was given the five days suspension which is the subject of this appeal. During calendar year 1977 Jennings' attendance record reflects 74 hours of sick leave and pay cuts for an additional 52.5 hours for which he had no earned sick or annual leave. Of the total 126.5 hours, 80 hours of absenteeism occurred on either Friday or Monday. In his defense Respondent contends that many of the days he was absent was because of a sick child who had to be taken to the doctor. He didn't feel his wife was as capable to take the child to the doctor as was he. Jennings further contended that his supervisor, Purvis, made too many inquiries about his sickness when he, Jennings, called in sick, and when he felt bad he didn't want to come to work under Purvis. Jennings contends that just telling Purvis he is sick is adequate to justify his absenteeism. The guidelines for disciplinary action in the Personnel Policies and Procedures Manual for University of South Florida (Exhibit 4) for chronic or excessive absenteeism provides: For first occurrence: oral reprimand For second occurrence: written reprimand For third occurrence: one week suspension For fourth occurrence: dismissal. For the calendar year 1976 Jennings' pay was docked for 32 1/2 days of unauthorized absence and for the year January 1, 1977 to September 30, 1977 he was docked 6 days pay for absences taken in excess of that authorized. (Exhibit 3).
Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
The Issue The issue presented is whether Petitioner is liable for payment of sales and use taxes.
Findings Of Fact The Department conducted an audit of the business records of Petitioner, a Florida corporation operating a food catering business, covering the audit period of June 1, 1985 through May 31, 1990. As a result of that audit, the Department determined that Petitioner had failed to collect and remit sales taxes due to the Department and was liable for the payment of those unpaid sales taxes. The Department issued an assessment determining that Petitioner owed the amount of $213,683.87 in unpaid taxes, interest, and penalty for the audit period. On October 9, 1992, the Department issued its second revised audit assessment based upon its redetermination of Petitioner's tax liability. On that date, the Department reduced Petitioner's liability to the amount of $147,924.45, which sum includes the unpaid tax, the penalty therefor, and interest through that date. Based on its revised calculations, the Department also determined that interest would accrue at the rate of $27.06 per day until the date of payment. Through the date of the final hearing in this cause, Petitioner has made no payments to satisfy or reduce the amount of assessment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner liable for the payment of sales tax, penalty, and interest through October 9, 1992, in the amount of $147,924.45 together with the amount of $27.06 interest per day until the date of payment. DONE and ENTERED this 18th day of August, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER The Department's proposed findings of fact numbered 1 and 6-8 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 2-5 and 9-16 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or recitation of the procedural context of this case. COPIES FURNISHED: Eric J. Taylor, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050 Richard J. Hays, Esquire 7100 West Commercial Boulevard Suite 109 Lauderhill, Florida 33319 Mark D. Cohen, Esquire 121 Southeast First Street Suite 600 Miami, Florida 33131 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Agency is authorized to license nursing home facilities in the State of Florida and, pursuant to Chapter 400, Part II, to evaluate nursing facilities and assign ratings. The Agency conducted a survey of Petitioner's facility from October 8 through 10, 2001. As a result of the survey, the Agency cited Petitioner for "fail[ing] to adequately assess and develop a plan of care to maintain acceptable parameters for a resident resulting in significant weight loss," and issued a Notice of Intent to change its licensure status to conditional. Petitioner timely challenged the conditional rating and filed a Petition for Formal Hearing. Pursuant thereto, a formal hearing was held on March 28 and 29, 2002. The Recommended Order, which was issued on August 14, 2002, recommended that the Agency enter a final order issuing a standard licensure rating to Petitioner and rescinding the conditional licensure rating. On February 18, 2003, AHCA issued a Final Order adopting the Findings of Fact and Conclusions of Law in the Recommended Order, ordering that a standard licensure rating be issued to replace the previously-issued conditional licensure rating, and rescinding the conditional licensure rating. As such, Petitioner was the prevailing party in the underlying case, DOAH Case No. 02-0049, AHCA 2001-071241. No appeal of the Final Order in the underlying proceeding was filed. On April 21, 2003, Petitioner filed a Petition for an Award of Attorney's Fees and Costs (Petition) with supporting affidavits. In the Petition, Petitioner sought relief under both the Florida Equal Access to Justice Act, Section 57.111, as well as pursuant to Subsection 120.569(2)(e). The Agency opposed the Petition. Although Petitioner requested an award of attorney fees under Subsection 120.569(2)(e), it presented no evidence that the Agency had filed any pleadings, motions, or other papers not properly signed or that any were interposed for any improper purpose. Accordingly, the undersigned will not consider an award of attorney fee's under Subsection 120.569(2)(e), and the focus of the evidence presented will be as to Section 57.111. The parties stipulated as to the reasonableness and amounts of the attorneys fees and costs. Reasonable attorney's fees are $21,547.50. The reasonable amount of costs is $4,183.82. The amount of attorney's fees and costs that may be awarded is limited to $15,000.00, based upon Subsection 57.111(3)(d)(2), which the parties agree is applicable to this proceeding. The Health Care Center of Naples, Inc., is a corporation with its principal office in Florida. At the time the underlying action was initiated by the Agency in October 2001, the Health Care Center of Naples, Inc., had a net worth of not more than $2 million. The net worth of Health Care Center of Naples, Inc., on October 31, 2001, was $158,048.65. The net worth of Health Care Center of Naples, Inc., for September 2001 was $190,829.22. The net worth of Health Care Center of Naples, Inc., for November 2001 was $171,726.44. The Administrative Complaint in the underlying proceeding, DOAH Case No. 02-0049, alleged that Petitioner failed to ensure that a resident maintained acceptable parameters of nutritional status. The basis of this allegation was the result of a survey which found that a resident had a significant weight loss from the period between July 30, 2001, to August 11, 2001. The Agency's Final Order, adopting the Recommended Order in Case No. 02-0049, found that the patient's weight loss was expected due to edema or third space fluid, resulting from the patient's being over-dehydrated before her recent surgery. Moreover, in the underlying proceeding, it was found that in determining that the resident had a significant weight loss, "the Agency surveyors based their calculations on an inaccurate usual body weight for the resident." As a result of these and other findings, the Agency's decision to change the status of Petitioner's licensure rating to conditional was rescinded. Although the Agency did not prevail in the underlying proceeding, the surveyors were substantially justified in citing Petitioner for the alleged deficiency, and the Agency was substantially justified in initiating the action. The Final Order found that the usual body weight relied upon by the surveyors in determining that the resident had a significant weight loss was obtained from the records of Petitioner. Also, the record in the underlying proceeding found that many of Petitioner's staff members were concerned about the resident's weight loss and did not consider that the weight loss was caused by edema. Finally, there is no indication in the record that at the time of the survey, Petitioner's staff gave the Agency surveyors any reasonable explanation for the resident's alleged significant weight loss. The evidence, which was the basis of the findings in the Final Order in the underlying proceeding, while available at the time of the survey, was not discovered or known to the surveyors and, to some extent, to Petitioner's staff.
