Findings Of Fact On February 19, 1993, Respondent, AHCA, published in the Florida Administrative Weekly, Volume 19, No. 7 at Page 859, a request for proposal "to provide identification and recoupment of medicaid overpayments to hospital vendors for the period prior to January 19, 1991." The RFP noted that all determinations or identification must be made and provided to the Department within sixty (60) days of the date of contract signing. The RFP provided that all proposals were to be provided no later than 3:00 p.m. on March 19, 1993. In the RFP, the Department "reserved the right to reject any and all proposals." The RFP generated four (4) bids (proposals) of which Petitioner submitted one. Petitioner's proposal was discussed by AHCA who in turn consulted with the United States Attorney for the Northern District of Florida for an opinion. Petitioner's proposal was reviewed with Gary Clark, the Assistant Secretary for Medicaid, and Terry Flynn, an Assistant United States Attorney in Florida. Petitioner's proposal to AHCA proposed to the Department of Health Rehabilitative Services' medicaid unit that, for a forty percent (40 percent) finders' fee, they would identify and recover medicaid overpayments made to certain unnamed hospitals which had been stockpiling funds in the event that the overpayments were discovered by medicaid. Approximately 55 percent of Florida's medicaid funds comes from the federal government. Assistant Secretary Clark requested a written opinion from the United States Attorney from the Northern District (of Florida). By letter dated April 12, 1993, the United States Attorney's Office for the Northern District formalized its opposition to such a contract for the following reasons: Title 31, U.S. States Code, Section 3730 allows for qui tam actions to be initiated by individuals. Should the federal government elect to pursue the qui tam action, the individuals who provide evidence to initiate the action can be awarded up to ten percent (10 percent) of proceeds recovered. (In recovery actions under the Federal Tort Claims Act, damages can be assessed in the amount of triple the face amount of false claims). If the federal government does not elect to pursue the qui tam action, the individual may pursue the case on its own and can be awarded up to twenty percent (20 percent) of the proceeds. The U.S. Attorney's Office inquired of Petitioner the source of their knowledge of overpayments. They refused to disclose. The U.S. Attorney's Office officials questioned whether the proposers had any civil or criminal liability and whether they were knowing participants in obtaining medicaid overpayments for any such hospital. The U.S. Attorney opined that it would be inappropriate for AHCA to enter into such a proposal. The conclusion was buttressed by the fact that the State of Florida was without authority to bind the federal government with such agreement as it would not preclude a federal grand jury from subpoenaing necessary evidence and testimony nor would it preclude the U.S. Attorney's Office from prosecuting civil and criminal violations which might surface from information gleaned from the proposal. Based on the U.S. Attorney's Office opposition, as related to AHCA, and Respondent's inability to determine whether or not the proposers had any civil or criminal liability, either state or federal, AHCA made the decision to reject any and all bids submitted in response to the RFP. The notice of rejection of all bids by AHCA was served on all parties on April 19, 1993. That notice was also posted at the site of the bid letting. In addition to rejecting all proposals, the RFP was withdrawn and negotiations with all proposers were suspended. Throughout the RFP, which was prepared by Karen Kutrer, a planner for AHCA, AHCA reserved the right to reject any and all proposals. Some of these reservations are set forth on pages 10, 11 and 23 of the RFP. Subsequent to the rejection of all bids by AHCA, the U.S. Attorney's Office advised AHCA that it was no longer opposing such a contract although it was still uncertain whether the proposers had "clean hands." AHCA further discussed the matter with its staff but decided that it would no longer initiate proposals pursuant to the subject RFP and declined to negotiate further with the proposers based on its determination that it was not in the agency's best interest to enter into such an agreement with proposers like Petitioner. This was done since it could not grant any immunity from prosecution in the event that the proposals provided the source for civil or criminal prosecution. AHCA also determined that the Petitioner had other alternatives, i.e., they could initiate qui tam actions on their own.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent (AHCA) enter a Final Order rejecting Petitioner's bid protest filed herein. DONE AND ENTERED this 8th day of November, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 8th day of November, 1993. COPIES FURNISHED: Roger Maas, Esquire Senior Attorney 1317 Winewood Boulevard Building 6, Room 271 Tallahassee, Florida 32399-0700 Richard K. Slavin Project Director 1400 Miami Gardens Drive, #210 North Miami Beach, Florida 33179 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
Findings Of Fact Mitchell is a highway construction contractor with its principal place of business located in Tallahassee, Florida. FDOT is the agency of the state of Florida which is responsible for the construction and maintenance of the roads designated as part of the State Highway System. On July 15, 1994, the parties entered into Contract No. 18,784 (contract) which required Mitchell to resurface the existing roadway, construct four (4) foot wide paved shoulders and perform other related work for $626,347.44 in State Project No. 59100-3512 (project) in Wakulla County, Florida. The contract incorporated by reference special provisions attached thereto and FDOT's Standard Specifications for Road and Bridge Construction (1991) (Standard Specifications). The contract required Mitchell to complete the project within 84 calendar days. Construction began on August 31, 1994, which was contract day one (1). In order to construct and pave the shoulders, Mitchell had to remove the top soil and stabilize the subgrade. After removing the top soil, Mitchell hauled borrow material to the project site. Mitchell spread the borrow along the roadside and mixed it with the existing sub-soil. Mitchell then attempted to attain a certain required density by compacting the shoulders. Mitchell hauled borrow to the project site from October 5, 1994, through October 8, 1994, and on October 13, 1994. Mitchell rolled the surface of the shoulders on October 18, and 20-22, 1994. The contractor was unable compact the subgrade to the required density. On or about October 22, 1994, FDOT refused to pay Mitchell for additional material to reestablish grade on the shoulders. From approximately October 24, 1994, through November 11, 1994, Mitchell remixed and compressed the subgrade soil in an unsuccessful attempt to stabilize the shoulders. From October 25, 1994, through November 7, 1994, Mitchell wrote at least four (4) letters to FDOT discussing the problems at the project site in achieving required density and stabilization of the subgrade on the shoulders. These letters are not a part of the record in this case. However, the hearing transcript from February 15, 1995, clearly shows Mitchell's position: (1) Plastic materials beneath the subgrade (unexpected conditions not contemplated under the contract) were causing a delay on the project and preventing Mitchell from achieving the required density and stabilization of the subgrade; (2) Mitchell would have to excavate the plastic material and haul in additional borrow to reestablish the grade of the shoulders before stabilization could be obtained; (3) Mitchell needed an extension of time in which to complete the project; and (4) Mitchell wanted FDOT to pay for the expenses (not covered under the contract) that Mitchell would incur in curing the problem. On or about November 11, 1994, Mitchell informed FDOT in writing that Mitchell was suspending work on the project. Mitchell suspended work without obtaining FDOT's approval as required by the contract. By letter dated November 14, 1994, FDOT responded to Mitchell's four (4) letters. FDOT's letter did not specifically deny each of Mitchell's requests but made it clear that Mitchell's claims were unsubstantiated. FDOT took the position that Mitchell created the problems with compaction by failing to follow FDOT procedures: (1) Prior to hauling in stabilizing material, Mitchell did not submit a sample of the existing on-site material so that a lime rock bearing ratio (LBR) could be established to determine how much, if any, stabilizing material would be needed to obtain the required LBR; (2) Mitchell did not submit samples or get FDOT's approval of the material used for stabilization before spreading and mixing it on the project site; (3) Mitchell did not sufficiently mix the material used for stabilization so that density could be obtained; (4) Soil samples of the material beneath the area being stabilized, to a depth of approximately three and one half feet, indicated that it was suitable for compaction; (5) The sources of borrow material used in attempting to stabilize the subgrade were not approved as required by the contract; (6) Mitchell added unapproved material, in excess of what was required, to the borrow material hauled to the project site. FDOT wrote this November 14, 1994, letter after investigating the problem and performing certain field and laboratory soil tests. On December 12, 1994, Stephen Benak, District Construction Engineer for FDOT, made a visit to the project site to conduct further investigation. Later that day the parties had a meeting. Mitchell again explained to FDOT that unexpected conditions at the job site were causing problems and preventing the contractor from obtaining density requirements on the subgrade. FDOT again informed Mitchell: (1) The unapproved borrow material that Mitchell previously hauled to the project site was unsuitable and causing the problem; and (2) Mitchell's proposal to under-cut (excavate and haul more borrow material) was a drastic cure and not compensable under the contract. Mitchell did not immediately return to work on the project. With credit for twenty-four (24) rain days, the contract performance time increased to 108 calendar days. Taking the rain days and intervening holidays into consideration, FDOT determined that the contract term expired on December 20, 1994. Mitchell did not return to work at the project site until December 23, 1994. By letter dated December 29, 1994, FDOT gave Mitchell notice of the agency's intent to declare Mitchell delinquent on the project and to suspend its Certificate of Qualification and that of all its subsidiaries. This letter states that Mitchell was making unsatisfactory progress on the contract because the contract time had expired and the work was not complete. The letter refers to section 8-8.2 of FDOT's Standard Specifications and Rule 14- 23, Florida Administrative Code. On January 12, 1995, Mitchell filed a Request for Formal Hearing without making an additional request for extension of contract time. This petition states: Mitchell Brothers has filed timely requests for extension of contract time due to the delays resulting from the lack of constructability and differing site conditions of the project. Therefore, the Department's issuance of the notice of delinquency is invalid. After receiving Mitchell's request for hearing, FDOT designated Tom Kinsella, Esquire, as counsel for the agency. By letter dated January 23, 1995, Mr. Kinsella referred Mitchell's request for a hearing to DOAH. The Hearing Officer issued a Notice of Hearing on January 27, 1995, setting this matter for hearing in DOAH Case No. 95-289 on February 8, 1995. In order to allow the parties sufficient time for discovery, the Hearing Officer subsequently rescheduled the case for hearing on February 15 and 16, 1995. The parties took depositions every day from February 2, 1995, to February 13, 1995. Bill Carpenter, FDOT's Project Engineer on the project at issue here, was the first deponent. Prior to Mr. Carpenter's deposition, Mr. Kinsella inquired as to whether there were any outstanding time requests. Mr. Carpenter assured Mr. Kinsella that FDOT had addressed and denied all outstanding time requests in FDOT's letter dated November 14, 1995. At the formal hearing in DOAH Case No. 95-289 on February 15, 1995, Mr. Benak testified on FDOT's behalf. On direct examination, Mr. Benak testified that Mitchell made no "proper" requests for contract time extensions. During cross-examination, Mitchell questioned Mr. Benak concerning Mitchell's letters written between October 25, 1994, and November 7, 1994. Initially, Mr. Benak testified that Mitchell's letters were not "formal" requests for extension of contract time. The Hearing Officer ruled that two of these letters contained preliminary requests for extension of contract time. Mr. Benak subsequently questioned whether Mitchell's letters were timely pursuant to section 8-7.3.2, Standard Specifications. Without resolving the issue of timeliness, Mr. Benak conceded that the delay was on-going and that the agency had never written to Mitchell requesting more specific information about the delay, i.e. all documentation of the delay and a request for the exact number of days justified to be added to the contract time. Therefore Mitchell was never required to submit a more formal request for contract time extensions. However, Mr. Benak never conceded that Mitchell's preliminary requests were pending at the time the agency issued its notice of intent to declare Mitchell delinquent or that the agency failed to follow its own procedures before issuing that notice. Mr. Benak maintained that the contract did not provide for extensions of contract time for delays due to the fault or negligence of the contractor. He testified that FDOT's letter dated November 14, 1994, effectively denied Mitchell's pending preliminary requests for time extensions and informed Mitchell that the delay was due to the contractor's fault or negligence. Accordingly, FDOT was not required to solicit further information from Mitchell before issuing the December 29, 1994, delinquency letter. As the hearing on February 15, 1995, progressed, it became apparent that the parties disputed a variety issues involving mixed question of fact and law. In ruling on an objection which is not at issue here, the Hearing Officer stated: * * It seems to me the more pertinent, you know, a much more pertinent area -- and we haven't addressed this in terms of the Department's procedures, that would start a request for extension of time, and it appears that the Department has never acted on that. And you've raised a very interesting matter, and that is under the rules, apparently if that process has been initiated, you can't go to delinquency, which means that this activity, this that they've tried to initiate, lacks the appropriate legal predicate. That's a good point. After the hearing in DOAH Case No. 95-289 recessed on February 15, 1995, Mr. Kinsella advised Mitchell's counsel that FDOT would withdraw the delinquency. Mr. Kinsella wanted to alert Mitchell that it was unnecessary for witnesses to attend the hearing the next day. When the hearing resumed on February 16, 1995, FDOT filed its Notice of Withdrawal of Notice of Delinquency and Motion for Relinquishment and Remand of Jurisdiction. The motion states, "The Department is now withdrawing it (sic) notice of intent to declare delinquincy without prejudice, it appearing that all of Mitchell Brothers, Inc., requests for additional time may not have been addressed by the Department." However, competent persuasive record evidence indicates that FDOT made this determination based on the Hearing Officer's prior rulings and statements during the hearing on February 15, 1995. Mr. Kinsella stated on the record: * * After the conclusion of the hearing yesterday on the basis of the matters that came up in terms of whether the preliminary requests for time extensions have been properly met by the Department and evaluated and addressed in the correspondence as pointed out by the Court, we went back and evaluated, and determined that we don't believe those have been fairly met and addressed by the Department, and that this delinquency was premature for that reason. Counsel for Mitchell did not object to the motion to relinquish jurisdiction but requested an opportunity to submit a proposed order. The Hearing Officer stated that Mitchell could file a motion to submit a proposed order and that FDOT would have an opportunity to respond to that motion. The Hearing Officer did not set a date certain for the filing of the posthearing motion but Mitchell's counsel stated that the motion would be filed in a very brief time, within a day or two. February 16, 1995, was a Thursday. The following Monday, February 20, 1995, Mitchell filed a Motion to Permit Submittal of Proposed Findings and for Entry of a Recommended Order, a proposed recommended order for the Hearing Officer's signature, and a Motion for Attorney's Fees. DOAH's Clerk docketed Mitchell's motion to submit proposed findings and the proposed recommended order in DOAH Case No. 95-289. The Clerk docketed Mitchell's motion for attorney's fees under DOAH Case No. 95-1096F. That same day, the Hearing Officer entered an Order Closing File which did not retain jurisdiction over any issue in DOAH Case No. 95-289. Subsequent relevant pleadings and procedures arising in the instant case between February 20, 1995, and June 14, 1995, are set forth above in the Preliminary Statement and incorporated herein. The record indicates that the parties were at an impasse when Mitchell suspended work on the project on or about November 11, 1994. After FDOT's November 14, 1994, letter and the meeting on December 12, 1994, the parties certainly were aware of each other's positions, and were deadlocked as to the reason for the delay in stabilizing the subgrade. The dispute between them involved multiple questions of fact and law which are not at issue here. FDOT's December 29, 1994, delinquency letter gave Mitchell what it was entitled to, i.e., a point-of-entry to challenge, in an administrative proceeding, FDOT's position that Mitchell created the conditions causing the delay in stabilizing the subgrade. FDOT had a reasonably clear legal justification for issuing that letter based on sections 8-7.3.2 and 8-8.2 of FDOT's Standard Specifications and Rule 14-23, Florida Administrative Code. The delinquency letter was not issued and subsequently filed with DOAH for an improper or frivolous purpose. As of February 15, 1995, the 165th calendar day of the project, Mitchell continued to work on the project which was only 36 percent complete and which FDOT had not conditionally accepted. Mitchell has incurred $44,408.50 in attorney's fees and $18,071.13 in cost in litigating DOAH Case No. 95-289 and DOAH Case No. 95-1096F. Mitchell is also obligated to pay $1,045.00 to Carolyn Raepple, Esquire, who testified concerning the reasonableness of the fees and costs that Mitchell incurred in DOAH Case Nos. 95-289 and 95-1096F. FDOT has presented no evidence to rebut the reasonableness of these fees and costs.
The Issue The issue is whether the medical license held by Respondent, Louis C. Alaia, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact The Respondent, Louis C. Alaia, M.D., was issued Florida medical license ME 0008062 on August 14, 1958. Dr. Alaia placed his Florida license on voluntary inactive status on December 31, 1979. Dr. Alaia's last known address is 18890 Santa Clara Circle, Fountain Valley, California. The Board of Medical Quality Assurance, the licensing authority for the State of California, revoked Dr. Alaia's license to practice medicine in California on May 15, 1987. The revocation was based on Dr. Alaia's conviction for manslaughter for the murder of his former wife and her boyfriend, on his inability to safely practice as a result of impairment from narcolepsy and cataplexy, and on his failure to show rehabilitation following the convictions and incarceration for the killings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation, Board of Medicine, enter a Final Order and therein revoke the license of Louis C. Alaia, M.D., to practice medicine in the State of Florida. DONE and ENTERED this 7th day of February, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4659 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact submitted by Petitioner, Department of Professional Regulation, Board of Medicine 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1), 2(2), and 3(2). COPIES FURNISHED: JONATHAN KING STAFF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 LOUIS C. ALAIA 18890 SANTA CLARA CIRCLE FOUNTAIN VALLEY, CALIFORNIA 92708 KENNETH EASLEY GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19th day of May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact On December 30, 1993, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on March 10, 1993, charging an unlawful employment practice by Respondent in connection with a denial of a raise in salary. On August 24, 1993, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was served on Petitioner and Respondent on August 24, 1993 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: The parties are advised that the Complainant may request that a formal, post-investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 60Y-5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form is enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the petition. Petitioner received the Notice of Determination. Petitioner understood that, under the FCHR rules cited in the Notice, the requirement for the petition to be "filed" meant that the petition had to actually be received by the FCHR. On September 30, 1993, 37 days after the Notice was served, the FCHR Executive Director issued a Notice of Dismissal, for the reason that no Petition for Relief had been filed. On October 13, 1993, Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR, and was accompanied by a transmittal letter from the Petitioner on her letterhead stationery that identified the enclosures. It was filed with the FCHR on October 18, 1993. After receiving the October transmittal, on November 18, 1993, the FCHR issued an Order to Show Cause, directing the Petitioner to provide reasons why the late-filed petition should not be dismissed. Petitioner responded to the show cause order by transmitting a package to the FCHR on November 30, 1993. It contained her response to the show cause order, a copy of the petition transmitted in October, and another original petition on a second form that Petitioner said was provided to her by the FCHR. This transmittal was also accompanied by a transmittal letter on Petitioner's letterhead stationery, describing the contents. The FCHR did not rule on the sufficiency of Petitioner's response, but rather transmitted the pleadings (including the show cause order and response) to DOAH for further proceedings. At the same time of the transmittal to DOAH, FCHR also issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. CFRH timely filed its answer with affirmative defenses, including the first affirmative defense that "the Petition for Relief is untimely." The Petitioner made two mailings of petitions: one mailing was made to transmit one form petition that she had completed in October, 1993, and a second mailing was made in November with a copy of the first form plus another original form filled out by Petitioner. Petitioner also testified that she mailed another petition, without a transmittal letter, on September 20, 1993. There was no evidence presented that a Petition was received by FCHR in September 1993 or that the document was returned to Petitioner as undelivered mail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 94-0070 and FCHR Case No. 93-3143, for failure to timely file the Petition. DONE AND ENTERED this 27th day of July, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of July, 1994.
The Issue The issue to be determined is whether Respondent violated section 626.611(14) or 626.621(8), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the insurance industry in the State of Florida. Respondent is licensed as a variable annuity and health agent, a life agent, a life and health agent, a health agent, a legal expense agent, and an independent adjuster. She holds license number A107405, which is presently valid. Respondent was the neighbor of an elderly couple named Paul and Rose Weinberg. As their health declined, she assisted them with their financial affairs. Paul Weinberg was diagnosed with Parkinson's Disease, and Rose had medical issues that caused her to be infirm. Respondent's assistance became labor intensive and time consuming. She obtained a power of attorney from the Weinbergs to facilitate the handling of their affairs, and at some point her name was placed on at least Rose Weinberg's bank account and credit card. Paul Weinberg died about four years after Respondent began assisting the couple. After Paul's death, Respondent continued to provide assistance to Rose for an additional six- year period. She stopped working and spent her time taking care of Rose. Respondent testified that during this time, Rose started "paying" her for her efforts. These payments were not on a weekly basis, but made by Respondent periodically making a lump sum payment toward her own bills with Rose's funds. At some time after Paul's death, Rose was moved to assisted living facility. Respondent testified that as Rose's health declined and it was clear she would need more intensive care, she embarked on a Medicaid spend-down, in order to reduce the amount of Rose's funds so that she could qualify for Medicaid funding. Whether for this purpose or for some less altruistic motive, Respondent transferred $50,000 from a joint account she held with Rose to an account in her own name. Although Respondent claimed that the transfer of funds was performed pursuant to an agreement entered before Rose's health began to decline, she presented no written agreement of any kind to support her claim, and presented no explanation how this transfer of funds would have been permissible under federal law. She also presented no written agreement to support the statement that the payment of her bills out of Rose's funds was to compensate her for the assistance she provided to Rose. On December 28, 2007, the State Attorney for the Nineteenth Judicial Circuit in and for St. Lucie County filed an information against Respondent, charging her with third-degree grand theft in violation of section 812.014, Florida Statutes (2006); fraudulent use of a credit card, in violation of section 817.61, a third-degree felony; criminal use of personal identification information in violation of section 817.568(2)(a), a third-degree felony; and exploitation of an elderly or disabled adult while in a position of trust, in violation of section 825.103(1)(a) and (2)(b), a second-degree felony. Respondent hired T. Charles Shafer and his associate, Beth Allen, as counsel to represent her in the criminal proceedings. As part of their representation, there was some discussion of entering into a plea to resolve the criminal charges. During these discussions, Respondent inquired repeatedly whether any plea deal would have a negative effect on her insurance license. Mr. Shafer and Ms. Allen advised her several times to seek advice from someone specializing in regulatory matters to address this issue. However, in response to her concerns regarding her license, Ms. Allen called the Department of Financial Services to inquire about the ramifications of a nolo contendere plea. She presented the scenario as a hypothetical. Ms. Allen could not remember the name of the person to whom she spoke, and what she was told is in dispute. Ultimately, what she was told is not particularly relevant. After the telephone call, Mr. Shafer wrote Respondent a letter which stated in part: Dear Ms. Haber: I am in receipt of your September 11 e-mail correspondence to Ms. Allen. I understand your concern over how a plea and sentencing may affect your occupation, but as I advised in our last several phone calls, I do not know what collateral consequences such a sentence will have on your profession; I can only tell you with certainty how it will affect your status relative to being able to one day filing an action to seal your records in this matter. However, pursuant to your request, Ms. Allen found a telephone number on the website you provided. She called the Florida Department of Services help-line. She asked the person she spoke to what would happen to your license as a result of a no contest plea to a felony theft with a withhold of adjudication and probation. Their representative advised that since you already have a license, you would not be suspended or placed under review; however, it is your duty to notify the Bureau of Licensure of any law enforcement action, such as your current predicament. Please be advised that neither I nor Ms. Allen vouch for the accuracy of this information, and, as we have suggested repeatedly in past conferences, insist that you personally validate it. (Emphasis added.) To give the type of answer described in the letter would be contrary to Department policy. Whether or not the description of the phone call contained in the letter is accurate, given Mr. Shafer's express qualification and directive that the information be separately verified, it was unreasonable for Respondent to rely upon it. By her own admission, she took no action to independently verify the information in the letter. Respondent pleaded nolo contendere to one count of second-degree grand theft. Respondent met with her attorneys on a Sunday at a Dunkin Donuts restaurant before signing the plea agreement. At that time, counsel went over the plea agreement with her, line by line. Included in the plea agreement is the statement, "I understand a conviction of a crime may cause me to lose local, state or federal licenses and can prevent me from getting certain licenses. A conviction of a felony will cause me to lose the right to vote and my right to own or possess a firearm or ammunition." At the plea hearing on September 15, 2008, the trial judge questioned Respondent regarding her change of plea. In the plea colloquy, the following occurred: THE COURT: Okay. Please tell me your name. MS. HABER: Angela Haber. THE COURT: And how old are you? MS. HABER: Forty-two. THE COURT: And how far have you gone in school? MS. HABER: Some college. THE COURT: Okay. And you read, write and understand English? MS. HABER: Yes. THE COURT: Are you -- don't take offense at any of these questions, I ask them of everyone because sometimes I'll go through this and if you don't ask these questions someone will come back later and say, "I was under the influence of drugs and I don't understand English when I entered my plea." Even though it's clear that they were. So you understand English? MS. HABER: Yes sir. THE COURT: And you're not under the influence of alcohol or any illegal narcotics? MS. HABER: No sir. THE COURT: Okay. Are -- did -- did you fully read this plea agreement from beginning to end? MS. HABER: Yes. THE COURT: These are initials at the bottom of each page and a signature at the end? MS. HABER: Yes. THE COURT: And did you fully understand each and every provision including the rights you're giving up by entering this plea? MS. HABER: Yes. THE COURT: Okay. You are charged with second degree grand theft, that's a second degree felony, its punishable by up to fifteen years in prison, a ten thousand dollar fine or both. You are also charged with fraudulent use of a credit card, criminal use of personal identification and exploitation of elderly or disabled adult, position of trust. And those charges would be dropped or dismissed at the time of sentencing. But it's my understanding that you wish to enter a plea to count one, second degree grand theft. Is that what you wish to do? MS. HABER: Yes. * * * THE COURT: Are you entering this plea because you're guilty or because you feel it's in your best interest? MS. HABER: I feel it's in my best interest. THE COURT: Okay. And is there any objection by the defense to the court taking judicial notice of the complaint affidavit for factual basis? MR. SHAFER: No sir. THE COURT: And both sides stipulate there's a factual basis for the plea? MR. SHAFER: Yes sir, for the plea. MS. BALDREE: Yes sir. And we would add that additionally, that this offense occurred in Saint Lucie County. THE COURT: Ma'am, are you entering this plea freely and voluntarily? MS. HABER: Yes. THE COURT: Has anyone threatened you or forced you or coerced you to enter this plea? MS. HABER: No. THE COURT: Has anyone mistreated you or misled you to enter this plea? MS. HABER: No. THE COURT: Has anyone made any promises to you other than what's contained in this petition? MS. HABER: No. THE COURT: If they have you need to know they're not binding on the court. Have you had enough time to talk to your attorney? MS. HABER: Yes. THE COURT: Do you need more time to talk to your attorney now in private? MS. HABER: No. THE COURT: Are you satisfied in all respects with his advice and counsel? MS. HABER: Yes. * * * THE COURT: Do you understand you're giving up your right to appeal all matters relating to the judgment, including the issues of guilt or innocence? MS. HABER: Yes. THE COURT: Do you understand that if you are adjudicated it would make you a convicted felon and you would lose certain civil rights? MS. HABER: Yes. * * * THE COURT: Do you have any questions for your attorney or the court concerning anything about your case, this petition or these proceedings? MS. HABER: No. THE COURT: Understanding everything we just went over do you still want to enter this plea? MS. HABER: Yes. THE COURT: Okay. I will accept the plea. I find there's a factual basis for it. I find the defendant does not appear to be under the influence of drugs or alcohol at this time. She appears to be aware of the nature of the crime to which she has pled, the consequences, her legal rights and the plea recommendations. I find the plea is freely and voluntarily entered upon a knowing and intelligent waiver of rights. . . . Respondent was sentenced on November 14, 2008. At that time, adjudication of guilt was withheld. She was placed on probation for a period of ten years and ordered to make restitution to Rose Weinberg in the amount of $50,000. On April 17, 2009, Respondent filed a Motion for Post- Conviction Relief and to Vacate Judgment Pursuant to Rule 3.850, Fla. R. Crim. P. In the Motion, Respondent sought to withdraw her nolo plea, based upon ineffective assistance of counsel. The basis for her claim was counsel's failure to advise her that a nolo plea would have a negative effect on her professional licensing. On June 26, 2009, the Honorable Robert E. Belanger entered a detailed Order Denying Defendant's Motion for Post Conviction Relief. The Order states in pertinent part: Defendant claims that she is entitled to withdraw her plea because of her counsel's deficient performance, i.e., in providing affirmative misadvise concerning a collateral matter. This is not even a close call. The court finds the motion to be totally devoid of merit. * * * The defense stipulated to a factual basis for the charge, and the defendant acknowledged that by entering a plea, she was giving up any defenses to the offense charged. Any defenses were abandoned when she entered the plea. Stano v. State, 520 So. 2d 278 (Fla. 1988); Dean v. State, 580 So. 2d 808 (Fla. 3d DCA 1991). Significantly, the court conducted a detailed plea colloquy, asking the defendant the required questions to ensure that the plea was being entered freely, knowingly, intelligently, and voluntarily. Defendant, who was under oath, testified that she had signed the plea form and was aware of the waiver of her various rights. She further testified that she had sufficiently discussed the change of plea with her attorney and that no one had threatened her, coerced her or mislead her into entering the plea. She also confirmed that no one had made any promises to her, except those contained in the plea form. A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences. . . . Respondent appealed the trial court's order. On April 13, 2011, the Fourth District Court of Appeal affirmed the trial court decision. Haber v. State, 59 So. 3d 123 (Fla. 4th DCA 2011). The Fourth District's mandate issued May 13, 2011. Respondent paid $10,000.00 toward the required restitution at the time of sentencing. On October 26, 2011, Respondent moved to have her probation terminated upon payment of $11,000.00 for restitution. On that same day, the trial court ordered that upon payment of the $11,000.00, the court would enter an order terminating Respondent's probation, and the balance of the amount owed by Respondent for restitution, i.e., $15,552.86, would convert to a civil judgment. Respondent paid the $11,000.00 plus court costs and on November 6, 2011, the court entered the Order Terminating Probation.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services enter a Final Order finding that Respondent has violated sections 626.611(14) and 626.621(8), and revoking Respondent's licenses and appointments issued or granted under or pursuant to the Florida Insurance Code. DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2012. COPIES FURNISHED: Donald E. Pinaud, Jr., Esquire Kattman & Pinaud, P.A. 4069 Atlantic Boulevard Jacksonville, Florida 32207 Robert Alan Fox, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
