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
The Issue The issues to be considered were framed through challenges to the aforementioned rules as alleged invalid exercises of delegated legislative authority, and if held to be invalid that the rules constitute agency statements that violate Section 120.535, Florida Statutes. In particular Petitioner alleges that the rules are invalid exercises of delegated legislative authority for reason that: The Respondent failed to publish notice of its decision to modify the challenged rules after they had been proposed. Rules 25-22.056(1)(a) and (4)(b), Florida Administrative Code, deny parties the opportunity to file exceptions to any order or Hearing Officer's recommended order as allowed by Section 120.57(1)(b)4, Florida Statutes. Rules 22-25.056(1)(a) and (4)(b), Florida Administrative Code, are invalid exercises of delegated legislative authority in that they modify and contravene Sections 120.53(1)(c), 120.57(1)(b)4 and 6 and 120.58(1)(e), Florida Statutes, and are arbitrary and capricious. Concerning Section 120.53(1)(c), Florida Statutes, the challenged rules are alleged to be other than "rules of procedure appropriate for the presentation of argument." It is asserted that the possibility exists that the failure to accept a finding of fact could be considered as a waiver of objection on appeal in the setting where the rules are not procedures appropriate for presentation of argument. Therefore, the rules are alleged to be inappropriate. It is alleged that the rules violate Section 120.57(1)(b)4, Florida Statutes, specifically in that the rules do not allow parties the opportunity to file exceptions in the instance where two or more Public Service Commissioners conduct the formal proceeding, contrary to the referenced statutory provision which does not contain that limitation. Similarly, it is alleged that the rules violate Section 120.57(1)(b)6(e), Florida Statutes, by failing to provide the parties the opportunity to develop a record which includes exceptions, in that no opportunity to file exceptions is provided other than the instances where a hearing officer conducts the formal proceedings. It is alleged that Section 120.58(1)(e), Florida Statutes, is violated in that the challenged rules do not provide the parties the opportunity to file exceptions to the proposed order in those circumstances where a majority of those who are to render the final order have not heard the case or read the record, and where a decision adverse to a non-agency party is to be made, thus contravening the legal requirements set out in that statute. It is alleged that there is no logical rationale for limiting the statutory opportunity to file exceptions according to the number of Public Service Commissioners conducting the formal hearing, when considering the aforementioned statutes. It is alleged that Rule 25-22.056(1)(b), Florida Administrative Code, is vague in that it fails to establish adequate standards for agency decisions by not specifying what is meant by the right to file exceptions to a proposed order "within the time . . . designated by the hearing officer." Moreover, Rule 25-22.056(1)(b), Florida Administrative Code, when contrasted with Rule 25- 22.056(4)(b), Florida Administrative Code, is said to be inconsistent when describing the right to file exceptions to recommended orders. Rule 25-22.058, Florida Administrative Code, is alleged to limit oral argument in formal proceedings to only those instances when the Respondent exercises discretion to grant oral argument in contravention of Section 120.58(1)(e), Florida Statutes, which is alleged to grant a mandatory right of oral argument in instances where a majority of those who are to render the decision have not heard the case or read the record and a decision adverse to a party other than the agency is contemplated by a proposed order.
Findings Of Fact Rules Adoption On October 18, 1992, Respondent published notice of intent to adopt Rule 25-22.021, Florida Administrative Code, entitled Agenda Conference Participation. The publication was made in the Florida Administrative Weekly. On that same date, in the Florida Administrative Weekly, Respondent published notice of its intent to amend Rule 25-22.056, Florida Administrative Code, entitled Post Hearing Filings; to repeal Rule 25-22.057, Florida Administrative Code, entitled Recommended Order, Exceptions, Replies, Staff Recommendations; and to amend Rule 25-22.058, Florida Administrative Code, entitled Oral Argument. On November 12, 1992, Petitioner submitted timely written comments to the Respondent regarding the rule proposals. In these comments Petitioner expressed an interest in the right to file exceptions to opposing parties' proposed findings of fact and to file exceptions to Respondent's staff advisory memoranda provided to Commissioners. On February 16, 1993, Respondent considered the published rules and public comments and voted to adopt the rules with changes. On March 3, 1993, Respondent filed with the Secretary of State a certification of the adopted rule, rule amendments and rule repeal previously described. On March 4, 1993, Respondent issued an order memorializing the adoption process. That order was No. PSC-93-0337-FOF-OT, Notice of Adoption of Rule. This document set forth that the Respondent had adopted Rules 25-22.021 and 25- 22.056, Florida Administrative Code, with changes; that Rule 25-22.058, Florida Administrative Code, was adopted without change and that Rule 25-22.057, Florida Administrative Code, was repealed. Respondent did not publish additional notice in the Florida Administrative Weekly of the decision to change Rule 25-22.056, Florida Administrative Code. The Parties Petitioner is a public interest environmental law firm with an office in Tallahassee, Florida. It is a corporation authorized to do business in the state of Florida. Petitioner has been a party to Respondent's formal administrative proceedings and is presently a party to such proceedings. In the past, Petitioner has filed post-hearing pleadings following formal administrative proceedings conducted by Respondent. Respondent holds hearings pursuant to Section 120.57, Florida Statutes, and prepares orders in accordance with that provision. The Florida Public Service Commission has five members. The Chairman of the Florida Public Service Commission has the responsibility to assign cases for hearing. See Sections 350.01 and 350.125, Florida Statutes. The assignment of formal proceedings is to an individual Public Service Commissione; a hearing officer with the Division of Administrative Hearings upon referral to the Division of Administrative Hearings; and panels constituted of two or more Commissioners. See also Rule 25-22.0355, Florida Administrative Code. Upon Petition in accordance with Section 350.01(6), Florida Statutes, and by decision made by a majority of the commissioners some proceedings may be assigned to the full Florida Public Service Commission for consideration. Commissioners who have been assigned to a proceeding act in a quasi- judicial capacity and are called upon to find facts as well as determine applicable law and are charged with making the ultimate decision in that proceeding. Commissioners vote on the issues considered in the cases presented. The voting occurs at a public agenda conference. A vote sheet is maintained. Legal staff assist the Commission in preparing the final order than memorializes that vote. There are no preliminary drafts or recommended orders (proposed orders) circulated to the parties unless the hearing was conducted by a single Commissioner serving as a hearing officer. Dissents from the majority vote in proceedings conducted by panels of Commissioners may or may not be reflected through a written dissenting opinion shown at the end of the final order. The final order discusses issues, makes fact finding and draws legal conclusions, and also makes ruling on proposed findings of fact submitted by the parties. There is no requirement for review or signature on the final order by persons assigned to the proceedings. The final order is issued by the Director of the Division of Records and Reporting or a person supervised by that individual. Opportunity is not presented to file exceptions to the staff advisory recommendations or to final orders of the Commission. Exceptions may be filed to proposed or recommended orders drawn by a single Commissioner sitting as a hearing officer or directed to recommended orders issued by a hearing officer from the Division of Administrative Hearings. Commissioners assigned to a proceeding receive copies of post-hearing submissions. In cases which are heard by two or more Commissioners, a recommended order (proposed order) is not prepared. Instead, in each case the Commissioners have available a staff memorandum concerning the issues in the proceeding for use at the agenda conference where a decision is reached in the case. That decision is rendered as a written final order. Advisory memoranda presented to assigned Commissioners in the various proceedings include discussions of issues found in prehearing orders, statements by each party concerning their position on those issues, staff recommendations as to resolution of issues, and an analysis of evidence and argument presented in the hearings and in the post-hearing filings, with citations to hearing testimony and reference to hearing exhibits. At times the advisory memoranda may include more than one recommended disposition on issues if the staff members do not concur as to the appropriate recommendation. Staff members may not prepare an advisory memorandum if they have testified in the proceeding. The advisory staff memoranda are not controlling when the assigned Commissioners deliberate cases. Commissioners who have been assigned to a case have heard the testimony and had the opportunity to review prefiled testimony, the hearing transcripts, transcripts of any argument that was permitted, the briefs of the parties and any proposed findings of fact and conclusions of law, as well as any statement of position of the parties and the staff advisory memorandum before deciding a case. The format for final orders is described in Rule 25-22.059, Florida Administrative Code. After a final order has been entered an adversely affected party may request reconsideration of the final order or take appeal to the appropriate court. See Rule 25-22.060, Florida Administrative Code. A motion for reconsideration addresses the substance in the final order, whereas, corrections which deal with scrivener's errors are made by informal contact through correspondence directed to the Florida Public Service Commission. A motion for reconsideration need not be correctly styled to be considered. Motions for reconsideration are voted upon by the Commissioners assigned to the proceeding. Separate written advisory memoranda are prepared directed to the disposition of motions for reconsideration. The motion is voted upon by the Commissioners assigned to the proceeding. The order directed to the motion for reconsideration is drafted by the legal staff for the Commission. The vote by the individual Commissioners assigned to the proceeding in deciding whether to reconsider is memorialized in a manner similar to the vote on the final order decision previously reached. The Subject Rules Rule 25-22.056(1)(a), Florida Administrative Code, describes the post- hearing opportunities for parties to a proceeding where two or more Commissioners or the full Commission conducts a hearing pursuant to Section 120.57, Florida Statutes. By contrast Rule 25-22.056(1)(b), Florida Administrative Code, describes the opportunities for post hearing submissions following a hearing conducted pursuant to Section 120.57, Florida Statutes, in which a single Commissioner sits as a hearing officer. Rule 25-22.056(4)(b), Florida Administrative Code, describes the opportunity for excepting to the proposed order of a single Commissioner sitting as a hearing officer or the recommended order in cases heard before a Hearing Officer employed by and assigned by the Division of Administrative Hearings. Rule 25-22.058, Florida Administrative Code, describes opportunities for oral argument before the Florida Public Service Commission associated with Section 120.57, Florida Statutes, formal hearings.
Findings Of Fact On August 17, 1992, Petitioner Donald filed a Charge of Discrimination alleging that Respondent Winn Dixie was guilty of an unlawful employment practice, to wit, racial discrimination in failure to "promote" Petitioner from a part-time position to a full-time position because he is black, the most recent non-promotion date being July 22, 1992. After investigation, the Florida Commission on Human Relations entered and mailed a Notice of Determination: No Cause and Determination: No Cause on March 23, 1993. That Notice contained the following pertinent language: If redetermination is not requested, 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 22T-9.008 and Chapter 22T-8, Florida Administrative Code . . . Failure of Complainant to timely file either a request or petition will result in the dismissal of the complaint pursuant to Rule 22T-9.006, Florida Administrative Code. (See "Exhibit A" attached to, and incorporated in, this Recommended Order). Petitioner mailed his Petition for Relief and it was stamped in as filed at the Florida Commission on Human Relations on April 28, 1993. The Commission did not enter an order of dismissal or otherwise reject the petition as untimely. On May 5, 1993, the Commission transmitted the Petition to the Division of Administrative Hearings (DOAH) for formal hearing pursuant to Section 120.57(1), F.S. On May 5, 1993, and simultaneously with its transmittal of the Petition to DOAH, the Commission served/mailed the Petition to Respondent with a Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice. The Commission's transmittal of Petition had included a Notice to Respondent containing the following specific language: You are required to file an answer with the Commission within 20 days of the date of service of the Petition. Your attention is directed generally to Chapter 22T-8, Florida Administrative Code, which pertains to general procedures before the Commission. You are also referred to Rule 22T-9.008(5) which sets forth those matters which must be included in the Respondent's answer. Please note that the filing of a motion to dismiss does not toll the time for filing an answer. (See "Exhibit A" to this Recommended Order). On May 11, 1994, DOAH's Clerk mailed an Initial Order to both parties. The parties were charged by Rule 60Q-2.003(6), F.A.C. and by DOAH's Initial Order in this case with serving upon each other a copy of every pleading either party filed with DOAH. The Initial Order also permitted the parties to advise the undersigned hearing officer of dates and locations they preferred for scheduling the de novo evidentiary hearing on the merits. Petitioner responded to the Initial Order. Respondent did not. Respondent also filed no Answer to the Petition for Relief within 20 days as required by Rule 22T-9.008, F.A.C., [renumbered 60Y-5.008(5)(a), F.A.C.]. If a Respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the material facts alleged in the petition. See, renumbered Rule 60Y-5.008(5)(d) F.A.C. By DOAH Notice of Hearing mailed May 27, 1993, the cause was scheduled for formal hearing on the merits for October 18, 1993. Simultaneous with that Notice of Hearing, an Order of Prehearing Instructions was entered and mailed. The Order of Prehearing Instructions was directed to both parties and was very specific as to what was required of them, including but not limited to listing witnesses and exhibits, clarifying which issues of material fact were disputed, and listing any pending motions. A copy of the entire order is attached and incorporated in this Recommended Order by reference as "Exhibit B". A joint prehearing stipulation was not timely filed as required by the order of prehearing instructions, and neither party filed a unilateral statement on or before September 29, 1993 as permitted by the order of prehearing instructions. In short, neither party timely complied with the first Order of Prehearing Instructions. On October 1, 1993, certain unsigned, confusing, contradictory, and incomplete papers were filed. This filing, which turned out to be filed by Petitioner (see Finding of Fact 22) among other things requested that the hearing officer subpoena the listed witnesses, listed "stipulations" not signed by anyone, and listed motions never filed at DOAH. This ambiguous item not only was unsigned, but did not reflect who, if anyone, it had been served upon. Common practice and procedure require subpoenas to be sent by DOAH to a party for service by that party on witnesses, and subpoenas may not be served upon witnesses by the hearing officer. The October 1, 1993 filing prompted the entry and service upon both parties of an order on October 12, 1993 which had attached to it the unsigned filings of October 1, 1993. The October 12, 1993 order, with the unsigned and ambiguous attachments is attached and incorporated in this recommended order by reference as "Exhibit C". That order cancelled the October 18, 1993 formal hearing on the merits, subject to rescheduling of the formal hearing on the merits upon clarification of the unsigned papers filed. This order was entered instead of automatically precluding either party from presenting evidence, an option permitted by the prior Order of Prehearing Instructions. The order gave both parties an equal opportunity to do what was procedurally necessary to advance the case to formal hearing on the merits. The October 12, 1993 order granted both parties 45 days in which to confer with one another and file the joint prehearing stipulation contemplated by the prior order of prehearing instructions and to submit several agreeable dates for rescheduling formal hearing on the merits. In further pertinent part, the October 12, 1993 order provided that if a joint stipulation could not be agreed upon between the parties, they could still proceed to formal hearing on the merits by timely submitting unilateral statements listing their respective exhibits and witnesses. The order also went on to specifically provide as follows: Failure of either party to submit at least the names of witnesses to be called by that party and a list of exhibits to be introduced by that party will result in exclusion of that evidence at formal hearing in this cause. Under the terms of the October 12, 1993 order, the date for filing of unilateral witness and exhibit lists was November 26, 1993. Neither party timely filed witness or exhibit lists. On December 14, 1993, which was eighteen days after the last date for compliance with the October 12, 1993 order had passed with Petitioner and Respondent each failing to timely comply therewith, another order was entered. That order advised the parties that since, by the terms of the October 12, 1993 order, both parties were now precluded from presenting any evidence in support of, or contrary to, Petitioner's claim, it appeared that there was no need to conduct an evidentiary hearing. However, the order also granted the parties 30 days in which to show cause why Petitioner's Petition for Relief should not be dismissed for failure to comply with the October 12, 1993 order. A copy of the December 14, 1993 order is attached and incorporated in this recommended order as "Exhibit D". That same day, Petitioner filed a request for 22 blank subpoenas and to reschedule formal hearing, but no witness or exhibit list. A copy of this item is attached and incorporated in this recommended order by reference as "Exhibit E." The date for filing of responses to the December 14, 1993 order to show cause was January 13, 1994. Respondent did not file any response to the December 14, 1993 order or the December 14, 1993 pleading. 1/ However, on January 13, 1994, Petitioner timely filed a paper captioned "Pleadings Motions". This paper, a copy of which is attached and incorporated in this recommended order as "Exhibit F," was similar, but not identical to, the unsigned papers filed October 1, 1993. It again requested subpoenas be served by the hearing officer, listed names and addresses of potential witnesses, and requested that the case not be dismissed because Petitioner was without legal counsel and because it is "a very hard case". It specifically stated, "Please consider hearing my testimony and others on this matter." Petitioner's January 13, 1994 pleading could be read as a motion to allow Petitioner to testify and present witnesses and exhibits. In an abundance of caution, the undersigned mailed a copy of it to Respondent on January 18, 1994. Respondent did not file any response to Petitioner's January 13, 1994 pleading. As required by law, the undersigned had served Respondent with all DOAH orders and notices. Also, in an abundance of caution, the undersigned had served Respondent with Petitioner's January 13, 1994 pleading and the unsigned October 1, 1993 papers at the address of record for Respondent's "in-house" counsel, which name and address was provided in the Florida Commission on Human Relations referral papers. No documents were returned to the Division of Administrative Hearings, creating the legal presumption that all materials had been received by Respondent. Still, Respondent had failed to comply with any DOAH order whatsoever and for nine months had not taken any affirmative action to defend against the Petition for Relief. No Answer to the Petition for Relief, timely or otherwise, had ever been filed by Respondent. The record, as reviewed by the undersigned as of February 3, 1994, also indicated that Petitioner's original Charge of Discrimination before the Florida Commission on Human Relations had been directed to Respondent, not at a Jacksonville address, but at a Quincy address. Therefore, because the law and the undersigned are loathe to cut off any legitimate litigation, and in a further abundance of caution, the undersigned determined that Petitioner and Respondent should have one last opportunity to explain why they had not timely complied with prior orders and why, if at all, a formal hearing with witnesses and exhibits on the merits of the Petition for Relief should be rescheduled. To that end, and still in an abundance of caution, an order was entered on February 3, 1994, a copy of which order is attached and incorporated in this recommended order by reference as "Exhibit G". The decretal portion of that order read: A hearing on the limited issue of whether or not either party should be permitted to present evidence at a rescheduled formal hearing will be held at 10:00 a.m., March 1, 1994, at the Division of Administ- rative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida.* Witnesses need not appear at that time. Only parties or their legal counsel shall appear. Failure of Petitioner to appear in person or through legal counsel at that date, time and place WILL result in dismissal of this cause. Failure of Respondent to appear in person or through legal counsel at that date, time and place WILL result in the exclusion of all of Respondent's witnesses and evidence. 4. [sic] Whether or not a formal hearing on the merits will be rescheduled at all will be determined by an order entered after the undersigned has heard what the parties may have to say at the hearing now scheduled for March 1, 1994. (Emphasis in the original). Still in an abundance of caution, the foregoing order was served by the undersigned upon Respondent at both its Quincy and Jacksonville addresses. No court reporter was present at the March 1, 1994 interlocutory hearing. Petitioner appeared and represented himself at the March 1, 1994 hearing. Respondent's "in-house" counsel from Jacksonville did not appear at the Tallahassee hearing but authorized Winn-Dixie's District Manager W. E. Carroll and its Quincy Store Manager Terry Miller to appear. Mr. Carroll works in Tallahassee. Mr. Miller drove 23 miles from Quincy for the hearing. After examination by the undersigned in open court pursuant to Rule 60Q-2.008, F.A.C., Mr. Carroll was accepted as a qualified representative for Respondent. Inquiry was also made by the undersigned at the March 1, 1994 hearing as to any reason a formal hearing on the merits should be rescheduled. Each prior order and pleading 2/ was explored orally in open court. Oral argument was also invited as to why either party should be permitted to present evidence. Oral admissions and stipulations of the parties were received. At that hearing, Petitioner contended that he had not understood the prior orders and that the unsigned papers filed October 1, 1993 (see Findings of Fact 8-9 supra.) were his attempt to provide a witness list. Petitioner also contended that he thought he was represented by legal counsel at one point and to support that assertion, he presented a December 6, 1993 letter he had received from Legal Services of North Florida, Inc. The original of this letter (exhibit) is attached and incorporated in this recommended order as "Exhibit H". At that hearing, no clear explanation was given of why Respondent had failed to Answer the Petition for Relief and also had filed no response to any prior DOAH order or pleading by Petitioner. Still in an abundance of caution, and because the undersigned is loathe to enter defaults or impose sanctions at any time, each party was permitted 10 days after the March 1, 1994 formal hearing in which to file any further written clarification of the record or pleadings. Petitioner filed a response dated March 10, 1994 on March 10, 1994, but Respondent still filed no Answer to the Petition for Relief, despite numerous questions by the undersigned at the March 1, 1994 hearing concerning what facts asserted in the Petition for Relief were admitted and which were denied by Respondent and inquiring why no Answer had been filed by Respondent. On March 4, 1994, Respondent filed a written response dated March 3, 1994. A copy of Petitioner's March 10, 1994 response, without attachments, is attached and incorporated herein as "Exhibit I." A copy of Respondent's March 4, 1994 response, without attachments, is attached and incorporated herein as "Exhibit J." Respondent's March 4, 1994 letter ("Exhibit J") was directed primarily to providing the hearing officer with a history of settlement negotiations and copies of proposed settlement documents. This is a practice contrary to Section 90.408, F.S., The Florida Evidence Code. Respondent had filed no Motion to Dismiss the Petition for Relief and no Answer, and although by rule, even a motion to dismiss may not toll the 20 days provided by rule for Respondent to answer the Petition for Relief, Respondent's March 4, 1994 letter response also raised, for the first time, the untimeliness of the Petition for Relief as grounds to dismiss this cause. However, Respondent's March 4, 1994 allegations based on untimeliness of the Petition were not persuasive, in that the rule that Respondent cited in support thereof applied only to what the Florida Commission on Human Relations or its Executive Director may do either sua sponte or upon motion regarding Requests for Redetermination. The rule cited therein was inapplicable to the legal principle for which Respondent cited it. Therefore, Respondent's argument against the Petition was incorrect or incomplete. Also, due to the complexity of the several statutes and rules involved, ruling on the issue of untimeliness vel non of the Petition for Relief required the taking of factual evidence. For instance, there is a Commission rule which tolls the 30 days for filing the Petition if the Petitioner applies for, or the Commission grants, an extension of time for filing the Petition. Consequently, Petitioner was entitled to an opportunity to present all the facts concerning his filing of the Petition in response to the allegations of the Respondent's March 4, 1994 letter. The representations of Respondent's qualified representative at the March 1, 1994 hearing and the materials filed after that hearing by Respondent's "in house" counsel ("Exhibit J") did not show good cause why Respondent should be permitted to put on a defense by way of undisclosed oral testimony or exhibits. Likewise, Petitioner did not demonstrate by his oral argument, exhibit, and post-hearing response ("Exhibit I"), any legal good cause why his noncompliance with prior orders should be excused so as to permit him to call any witnesses or put in evidence any exhibits not disclosed to Respondent. More specifically, the date and contents of the December 6, 1993 letter to Petitioner from Legal Services (original is "Exhibit H" hereto) did not support Petitioner's oral assertions at the March 1, 1994 hearing that he had been represented in this case by legal counsel, had relied on a lawyer to meet his November 26, 1993 filing date, or that Legal Services' retention of his documents at a critical time had prevented his timely compliance with any of the prior orders herein. Accordingly, an order was entered on April 21, 1994. A complete copy of that order is attached and incorporated in this recommended order by reference as "Exhibit K". That order provided, in pertinent part, as follows: The representations of Respondent's qualified representative at the March 1, 1994 hearing and the materials filed after that hearing by Respondent's legal counsel have not shown good cause why Respondent should be permitted to put on a defense by way of undisclosed oral testimony or exhibits. Likewise, Petitioner has not demonstrated good cause why his noncompliance with prior orders should be excused so as to permit him to call any witnesses or put on any exhibits not disclosed to Respondent. However, since Petitioner clearly has always been an appropriate witness and his oral testimony could be reasonably anticipated by Respondent, a formal evidentiary hearing pursuant to Section 120.57(1) F.S. will be convened solely for the taking of Petitioner Donald's oral testimony, subject to cross examination by Respondent. Also, the materials filed by Respondent's counsel after the March 1, 1994 hearing state for the first time that Respondent believes the Petition for Relief is subject to discretionary dismissal for untimeliness, pursuant to Rule 22T-9.07 F.A.C. [new number, if one exists, was not given]. However, Respondent still did not see fit to put this observation or belief in the form of a motion. Jurisdictional issues may be raised at any time. The jurisdictional issue requires evidence to sustain a motion, if a motion is made. Should Respondent see fit to defend on that issue by motion and evidence, Respondent remains free to do. (Emphasis supplied) Simultaneous with the entry of the April 21, 1994 Order, a Notice of Hearing was mailed to the parties. It provided for a formal hearing on June 13, 1994 and stated the issues as: "As set forth in the order entered simultaneously herewith. [The only witness will be K.E. Donald.]" Despite the language employed in the April 21, 1994 order, which still permitted Respondent to assert the untimeliness of the petition for Relief as a bar or jurisdictional issue, Respondent did not file a written motion or submit supporting documentation (evidence) on that issue prior to the June 13, 1994 formal hearing. At formal hearing on June 13, 1994, Respondent moved orally to dismiss the Petition for Relief due to its late filing. Hearing Officer Composite "Exhibit A" was admitted in evidence. Hearing Officer Composite "Exhibit A" consisted of The Florida Human Relations Commission Transmittal of Petition (one page), Charge of Discrimination (one page), Petition for Relief (three pages), Notice of Determination: No Cause (two pages) and Determination of No Cause (two pages). The original of this composite exhibit as received in evidence at formal hearing is attached and incorporated in this recommended order as "Exhibit A" to this Recommended Order. At formal hearing, Petitioner testified that he had not moved the Florida Commission on Human Relations for an order extending his time to file his petition, no order extending time had been entered, and he had neither a postmark nor any clear recollection of the date he mailed his Petition to the Commission. If Florida Commission on Human Relations Rules 60Y-4.004, 60Y- 4.007(1), 60Y-4.008(2), F.A.C., are not applicable, the Petition for Relief should have been filed with the Commission on April 22, 1993, a Thursday, and was filed late by six days, since it was filed with the Commission on April 28, 1993, the following Wednesday. These foregoing rules provide that when a document is received by mail, the date of filing shall relate back to the date of the postmark, provide three days for mailing where notice is mailed, and provide an extra day for filing when the last day falls on a Saturday, Sunday, or legal holiday. If those rules apply, then the Petitioner's delay is shorter than six days or indeterminable. The Petition for Relief was admittedly received by Respondent's "in- house" counsel on or before May 6, 1993. Respondent was specifically asked by the undersigned hearing officer how the late filing of the Petition for Relief had prejudiced Respondent's position. Respondent asserted that Respondent could not have foreseen that Petitioner would ultimately have been permitted to testify on his own behalf, and that, but for the Petition for Relief being filed six days late, Respondent might have filed an answer, would not have assumed that the Petition was barred and would not have, due to a conflict in the rules, failed to respond to all pleadings and orders, might have secured "out of house" counsel, would not have expended the cost of trying to negotiate a settlement with Petitioner after the cancellation of the October 18, 1993 formal hearing, and would not have incurred "enormous expense" during the Florida Commission on Human Relations' investigatory phase, in sending Messrs. Carroll and Miller to the March 1, 1994 DOAH hearing, and in filing its only written materials on March 4, 1994. Since the investigatory phase before the Florida Commission on Human Relations predated that agency's March 23, 1993 Determination of No Cause and also predated the filing of the April 28, 1993 Petition for Relief, that portion of Respondent's argument related to incurring enormous expense is patently absurd, as is Respondent's assertion that Respondent could not have foreseen that Petitioner would be permitted to testify on his own behalf. The expense incurred by Respondent in having one layman travel twenty three miles to Tallahassee and the other travel across town to formal hearing, even considering the value of those gentlemen's time to the corporation, and in having "in-house" counsel file Respondent's March 4, 1994 letter is de minimus, and these expenses have no nexus to the lateness by six days of the April 28, 1993 Petition for Relief. Respondent failed to demonstrate how the filing of the Petition for Relief on April 28, 1993 instead of on April 22, 1993 could have reasonably prevented Respondent from filing an Answer within 20 days as required by Rule 22T-9.008(5), F.A.C., [now renumbered as 60Y-5.008(5), F.A.C.], and as specifically instructed by the Florida Commission on Human Relations in its Transmittal of the Petition to Respondent. (See Finding of Fact No. 4, supra and "Exhibit A"). Respondent also failed to demonstrate how, under the circumstances of the language contained in the Florida Commission on Human Relations Transmittal of Petition and the DOAH orders, Respondent could have been misled by conflicting language in Rules 22T-9.07 [now renumbered 60Y- 5.007(9) and (12)], 22T-9.08 [now renumbered 60Y-5.008(1) and (5)] and 60Q- 2.004(5), F.A.C., 3/ into not answering the Petition for Relief for more than thirteen months, indeed, never answering it, or how such circumstances prevented Respondent responding to other motions and orders or prevented Respondent from obtaining "out of house" counsel. Settlement negotiations are not cognizable by the trier of fact, are always undertaken at the parties' mutual risk, and have never been deemed sufficient to toll filing dates. See, Section 90.408, F.S. After Respondent had been given the opportunity to present any further evidence on its oral motion to dismiss the Petition for Relief, the oral motion to dismiss was taken under advisement for resolution in this Recommended Order. (See Conclusions of Law, infra.) Respondent then orally moved for clarification of the April 21, 1994 Notice of Hearing and Order Limiting Scope of Formal Hearing, which was resolved by rereading that order and notice into the record. Respondent next orally moved for leave to present witnesses, contrary to the decretal portion of the April 21, 1994 order. No good cause was shown to vacate the April 21, 1994 order limiting evidence. To permit Respondent to put on undisclosed witnesses while Petitioner was precluded from doing so after Petitioner had appeared at formal hearing believing that Respondent's failure to answer constituted an admission of the material facts alleged in the petition and Petitioner had come prepared only for direct and cross-examination of himself would be unduly prejudicial. The motion was denied. The facts that Rule 60Y-5.008(5)(d) F.A.C. presumes admitted under the unanswered Petition for Relief are those set out in the Petition itself. They are fully set out in "Exhibit A" hereto and provide, in part, as follows: "The company had followed discriminatory hiring assignment and promotion policies against minority group members on an equal basis with white people. My fourteenth amendment were [sic] violated. That white get hired off the street and get full time without any training, the first day. * * * Discriminatory hiring, firing, assignment and promotion policies against Negroes using their position and power to destroy black worker jobs in order to bestow them on white workers." ("Exhibit A") Petitioner's unrefuted testimony elaborated on the foregoing admitted facts to show that Respondent employed fifteen or more employees and that Petitioner, a black male, had been employed part-time for nearly four years by Respondent in its Quincy store managed by Mr. Terry Miller; Mr. Miller's assistant had hired Petitioner as a member of a truck unloading crew. Petitioner also showed that other white workers were hired off the street without job training for full-time positions. However, Petitioner was hired by Mr. Miller as a full-time employee effective June 9, 1994, four days before formal hearing. Petitioner admitted that at some time before June 9, 1994, he had been "written up" for not meeting the employer's dress code and appearance standards and had also been "written up" for not meeting the employer's performance standards of moving at least 45 cases per hour. Petitioner maintained, without refutation, that these "write-ups" were unwarranted, pretextual citations because he was black. Petitioner testified, without refutation, that on at least one occasion he was "written up" in a category that did not include his regular job duties. This admission is no different that the expanded allegations included in an attachment to the Petition ("Exhibit A"), all of which allegations have been admitted by Respondent by its failure to answer the Petition. Petitioner also conceded, upon cross-examination, that in July 1992 there were some black full-time associates in the Quincy store and that promotions have been based on job performance, not seniority. However, no similarity of these other black full-time employees' employment situations or job duties was drawn to compare with Petitioner's personal employment situation or job duties. Consequently, the "write-ups" of Petitioner are found to be pretextual reasons for the employer's refusal to promote him. No stipulation or order bifurcating damage evidence from evidence of discrimination was entered in this case. Petitioner asserted that he was entitled to "compensation" from July 22, 1992 to June 9, 1994, but he presented no evidence of his pay rate per hour in either the full time or part time positions, nor any other nexus upon which lost compensation damages could be calculated. There also is no record evidence of what increases and/or decreases occurred in pay, pay rate, or emoluments for either position over that period of time. Likewise, there is no record evidence of how many hours Petitioner worked or could have worked in either the part-time or full-time position so that damages based on a pay differential can be calculated. Respondent orally moved to dismiss for failure of Petitioner to state a prima facie case. That motion was also taken under advisement for resolution in this Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Florida Commission on Human Relations enter a final order FINDING: That Petitioner has shown a prima facie violation of the Human Rights Act of 1977, Section 760.10 F.S. [1989], to wit: failure of a covered employer to "promote" Petitioner-employee to a full-time position because he is black; That Respondent has articulated, but has not substantiated, legitimate nondiscriminatory reasons for the actions complained of; and That Petitioner has shown the articulated reasons to be pretextual; AND ORDERING: That Respondent employ Petitioner in a full-time position. RECOMMENDED this 15th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 15th day of August, 1994.
Findings Of Fact The following facts are established in the parties' prehearing stipulation, filed on June 26, 1992, and confirmed at the hearing on June 30, 1992: The Respondent is the State agency charged with regulating the practice of dentistry pursuant to Section 20.30, Chapter 455, and Chapter 466, F.S. The Petitioner is a licensed dentist having been issued license number DN-0005106. The Petitioner maintains a professional dental practice and principal place of residence in the State of Florida having a principal business address of 2000 Weber Street; Sarasota, Florida 34239 and has maintained a professional dental practice and principal place of residence within the State of Florida since at least 1984 except for a six (6) weeks period of time in 1987 when the Petitioner practiced outside of the State. The Petitioner has a net worth of less than two million dollars including both personal and business investments and has never had a net worth of more than two million dollars. The Petitioner employs less than twenty-five full-time employees and has never employed more than twenty-five full-time employees. The attorneys' fees and costs sought by the Petitioner in this proceeding are reasonable in relation to the hourly rate charged and the time spent in preparation, review, and litigation of the underlying proceeding, appeal, and for this proceeding. On November 3, 1988 and December 21, 1988, Respondent initiated disciplinary action against Petitioner's license, through the filing of three Administrative Complaints. The Administrative Complaint in DPR Case number 0089897 (later DOAH Case number 89-0646) alleges that Respondent provided dental services to patient, J.R., from March 27, 1984 to April 23, 1985. Count I of the Complaint alleges that Respondent allowed his dental assistants to provide a series of dental services on patient J.R. in violation of Section 466.028(1)(aa), F.S. (1983). Count II of the complaint alleges Respondent incompetently performed root canal therapy and bridge work on patient J.R., in violation of Section 466.028(1)(y), F.S. (1985)[sic]. The Administrative Complaint in DPR Case number 0056166 (later DOAH number 89-0647), alleges that Respondent examined patient R.B. on December 3, 1984 and accomplished crown preparation work on patient R.B. on January 19, 1985. The complaint alleges that Respondent failed to diagnose pulp necrosis and failed to remove dental caries prior to crown preparation in violation of Section 466.028(1)(y), F.S. (1985)[sic]. The Administrative Complaint in DPR Case number 0066548 (later DOAH number 89-3313) alleges that Respondent, as dentist of record, treated patient P.F. on July 18, 1984. The complaint alleges that Joan Chen, D.D.S. at the direction of Respondent began crown preparation on four of patient P.F.'s teeth, and that the treatment by Respondent consisted of root canal therapy and placement of crowns. The complaint alleges that Respondent violated Section 466.028(1)(y) F.S. (1984) by failing to complete endodontic treatment, placing a permanent crown over a fractured tooth and perforating one tooth. Investigation and Probable Cause in DPR Case number 0089897 (DOAH number 89-0646) On Thursday, October 20, 1988, the probable cause panel of the Board of Dentistry met to consider among other matters, the complaint by patient J.R. against Dr. Delk. The panel was comprised of two members, William Robinson, D.D.S. and Thomas Kraemer, C.P.A. At the meeting the panel members had available the draft Administrative Complaint and an investigative packet, comprised of investigative reports, several pages of the patient's handwritten account of her treatment, and a written report by consultant, P. Anthony Pirkle, D.D.S., who had examined the records as well as the patient herself and concluded that Dr. Delk did not meet the acceptable standard of care in his examination, diagnosis and treatment. Dr. Pirkle's written report also recounted the patient's statement that a large amount of the dental care was rendered by dental assistants exclusively. The packet included copies of Dr. Delk's office notes for the patient, and documents related to a civil action by the patient, including a report by another dentist, consultant to the patient's lawyer. That consultant, like Dr. Pirkle, expressed concern about the patient's cooperation and prior home care, but still concluded, like Dr. Pirkle, that the work attempted by Dr. Delk was below the standard of care. After confirming that they had received and reviewed the supporting materials and documentation, the two panel members voted unanimously to find probable cause based on the draft Administrative Complaint, citing Sections 466.028(1)(aa) and 466.028(1)(y). Investigation and Probable Cause in DPR Case number 0056166 (DOAH number 89-0647) The Administrative Complaint in this case identifies the patient as "R.B."; the investigative packet, however, indicates throughout that the patient was R. [name deleted] J. W. [name deleted]. This case was initially presented to a probable cause panel on January 4, 1987, with two members present: Maxine Sindledecker, D.D.S. and W. Edward Gonzalez, Jr. D.M.D. The panel referred the case back to the department for a supplemental investigation, and in particular, the obtaining of original X-rays. Another panel was convened on June 7, 1988 on this, and multiple other cases. The panel members included Edward F. Baines, D.D.S., Thomas C. Kraemer, and William F. Robinson, D.D.S. Because he had submitted a consultant's opinion in this case that Dr. Delk violated Section 466.028(1)(y), F.S., Dr. Robinson recused himself from the consideration of probable cause. After discussion of the materials and information provided by DPR the remaining members of the panel considered probable cause, but then voted to require another supplementary investigation. The requested x-rays were still not available and one of three consultants' opinions was inconsistent. This case was next presented to the probable cause panel on October 20, 1988. This was the same panel that considered DPR case number 008987, as discussed in paragraph 9 above. This time, Dr. Robinson did not recuse himself, but voted with Mr. Kraemer to find probable cause based on violations of Section 466.028(1)(y). The transcript of the probable cause panel proceeding reveals that Dr. Robinson did not have all of his information packet. It was found, and the panel took a five-minute break for him to review it. The investigative packet included a February 18, 1988 letter from P. Anthony Pirkle, D.D.S., recommending no action against Dr. Delk in this case because Dr. Delk was not alerted to problems by the patient and he was not, therefore, given the opportunity to find the problems that did exist. This opinion was in contrast with Dr. Pirkle's earlier, June 4, 1987 letter concurring with another consultant's findings that Dr. Delk "failed to use necessary judgment". (Exhibit I) The written opinions of that consultant, Dr. Lewis Earle, is in the investigative packet, with Dr. Robinson's written opinion. Also included in the packet are notes from the investigator's interviews and office notes from Dr. Delk, a letter from Dr. Delk and notes from a subsequent treating dentist. After filing the Administrative Complaint, but before the formal hearing, DPR realized that Dr. Robinson should not have participated in the probable cause finding and the case was referred to a panel for reconsideration one last time. On August 21, 1989, the panel included: Robert T. Ferris, D.D.S.; Orrin Mitchell, D.D.S. and Thomas Kraemer. Dr. Ferris recused himself from consideration of the Delk cases because of his personal knowledge and a previous referral relationship. After discussing their concern with regard to conflicting opinions, the remaining two members voted to find probable cause. Investigation and Probable Cause in DPR Case number 0066548 (DOAH number 89-3313) A draft Administrative Complaint involving treatment of patient, P.F., was presented to the probable cause panel on December 12, 1988. The panel was composed of Edward Baines, D.D.S. and Tom Kraemer. The Board's counsel noted that the case had previously been before the panel but was sent out for additional information. There is no record of the previous panel's consideration. After confirming that they had received and reviewed the back up information, the two panel members voted for ". . . an Administrative Complaint based on Section 466.028(1)(y)" (Exhibit K, p.3). While the specific terms, "probable cause" were not used, the panel's intent to find probable cause is manifest in the context of the discussion. The back up packet included a complaint form by P.F. (then, P.A.) dated 4/17/85 and a letter from her subsequent treating dentist, Dr. Barnes, outlining an opinion that prior root canal work and crown placement was a deviation from acceptable minimal standards of care. The packet included investigator's notes of multiple interviews, including interviews with Dr. Delk, another dentist previously in his employ, several other employees of Dr. Delk, the patient's lawyer, and the agency's expert consultant, Wayne Bennett, D.M.D. The packet also included Dr. Delk's office records, with notes and x-rays, a copy of the civil complaint by P.F. against Dr. Delk and his employees, a written opinion by the consultant, Dr. Bennett, that failure to complete endodontic treatment prior to the permanent placement of crowns was below minimum standards. The Hearing, Final Order and Appeal After the Administrative Complaints were filed in each of the three cases and after Dr. Delk contested their allegations and requested formal administrative hearings, the cases were referred to the Division of Administrative Hearings (DOAH), where they were consolidated and eventually considered in a single proceeding conducted by Hearing Officer, Daniel M. Kilbride. The hearing was conducted in Orlando, Florida over a three-day period in March 1990, and a fourth day in May 1990. The hearing officer's recommended order dated September 26, 1990, found Dr. Delk violated Section 466.028(1)(aa) in case number 89-0646, violated 466.028(1)(y) in case number 89-0647, and violated "466.208(1)(y)"[sic] in case number 89-3313. The Board of Dentistry considered the consolidated cases on January 4, 1991, and its final order was filed on February 25, 1991. The final order substantially adopted the hearing officer's recommendations, with some non-material changes in the findings of fact and some "corrections" in the Conclusions of Law, to what the Board perceived were improper rule or statutory citations. The Board added a violation, Section 466.024(1)(a) F.S. (1985), found neither in the Administrative Complaint nor in the recommended order. The Board imposed fines in the total amount of $2,000.00; two-years' suspension, with 18 months stayed if the licensee completed a University of Florida dentistry course; and two years' probation after the suspension. Dr. Delk appealed the Board's order to the Fifth District Court of Appeal. In its initial opinion, filed January 24, 1992, the appellate court, per curiam, reversed the Board's final order, finding that Dr. Delk was charged with violations of statutes which were not in existence when the violations occurred. The opinion was corrected and reissued on March 25, 1992, to provide that he was tried under statutes retroactively applied. (Exhibit A). The opinion provides, in pertinent part: . . . Although the dentist contested the alleged facts and denied that any of his conduct violated the statutes, the hearing officer found otherwise and recommended sanctions. It was brought to the attention of the Board of Dentistry reviewing the hearing officer's findings, conclusions and recommendations that the misconduct charged allegedly occurred in 1984 and 1985 but that the statutes the dentist was found to have violated were amended and enacted as amended effective October 1, 1986. [footnote deleted] Notwithstanding, the Board of Dentistry approved certain of the hearing officer's findings and conclusions and imposed sanctions. In this appeal the dentist argues that he cannot be found guilty of violating statutes effective in 1986 by virtue of conduct occurring in 1984 and 1985. The DPR argues that while the statutes in question were amended in 1985 and 1986 and while the defendant was tried under the 1986 statutes, nevertheless, the basic statutes were in effect in 1984 and that the 1985 and 1986 statutory amendments were not significant. The dentist argues that the statutory changes involve both form and substance and that the 1986 statutes he was found to have violated were substantially and materially different than the 1983 statutes. We have examined the statutes and the changes and cannot hold with certainty that the 1986 statutes were substantially the same as the 1983 version which were applicable to the dentist's alleged misconduct. Presumptively the Legislature intends to change a statute when it is amended and the statutes after the amendments appear to either prohibit conduct not prohibited by the 1983 statutes or to more clearly prohibit conduct which was not clearly prohibited by the 1983 statutes. . . . The dentist was never charged with, nor found guilty of, a violation of Section 466.024(1)(a), Florida Statutes, by the hearing officer and the Board of Dentistry found the dentist guilty of that charge because it considered that statute more applicable to the facts found by the hearing officer than the statute specified in the charges. Therefore, the determination of the violation of that statute must be reversed. The record shows that Sections 466.028(1)(aa) and 466.028(1)(y), Florida Statutes (1986) were not in existence a the time of the conduct alleged. The determination that the dentist violated those statutes must also be reversed because those statutes, as distinguished from their 1983 predecessor statutes, cannot be retroactively applied to the earlier misconduct charged. The final order of the Board is REVERSED. Delk v. Department of Professional Regulation, 595 So.2d 966, 967 (Fla. 5th DCA 1992). Summary Findings The appellate opinion establishes without question that Petitioner Delk is a prevailing party. The parties' stipulations establish that he is a small business party. The parties also have stipulated to the reasonableness of the fees and costs sought for the underlying proceeding, appeal and this fees case. As of the time of the stipulation those fees and costs totalled $67,698.90. In addition, Petitioner, through counsel has submitted a supplementary affidavit for the remaining hours and costs in preparation, hearing and posthearing work in the instant proceeding, for an additional total of $12,300.00 in fees and $632.00 in costs. That the probable cause panels had ample "reasonable basis in fact" to direct the initiation of the proceedings is evident in the packets before the panels, containing the patient's complaints and voluminous investigative reports and written opinions, with one minor inconsistency from professional consultants. In each case the record established that the probable cause panel members had been furnished and reviewed the materials. In some cases there was extensive discussion on the content of the materials, and particularly on the written opinions of the consultants and the subsequent treating dentists.
The Issue Whether the Statewide Nominating Commission for Judges of Compensation Claims’ “Guidelines of Operation of the Statewide Judicial Nominating Commission” constitutes an unadopted rule, as defined in section 120.52(2), Florida Statutes, in violation of section 120.54(1), Florida Statutes. Filed January 10, 2018 4:52 PM Division of Administrative Hearings
Findings Of Fact 1. Judges of Compensation Claims are appointed by the Governor and charged with conducting administrative proceedings on petitions for benefits filed under Florida’s “Workers’ Compensation Law,” Chapter 440, Florida Statutes. See § 440.45(2) (a) & (c), Fla. Stat.; Fla. Admin. Code R. 600Q-6.105. These Judges are appointed for four-year terms, with the Governor having the discretion —- as qualified below - to reappoint a sitting Judge for a subsequent term. § 440.45(2) (c), Fla. Stat. The statute does not limit the number of times the Governor may reappoint a Judge of Compensation Claims, and does not prohibit the Governor from appointing a qualified person to serve non-consecutive terms as a Judge. 2. The Statewide Nominating Commission for Judges of Compensation Claims (“Commission”) is charged with making a threshold eligibility determination as part of the reappointment process. Prior to the expiration of a judge’s term of office, the statewide nominating commission shall review the judge's conduct and determine whether the judge’s performance is satisfactory. Effective July 1, 2002, in determining whether a judge’s performance is satisfactory, the commission shall consider the extent to which the judge has met the requirements of this chapter, including, but not limited to, the requirements of ss.440.25(1) and (4) (a)-(e), 440.34(2), and 440.442. If the judge’s performance is deemed satisfactory, the commission shall report its finding to the Governor no later than 6 months prior to the expiration of the judge’s term of office. The Governor shall review the commission’s report and may reappoint the judge for an additional 4-year term. If the Governor does not reappoint the judge, the Governor shall inform the commission. The judge shall remain in office until the Governor has appointed a successor judge in accordance with paragraphs (a) and (ob). If a vacancy occurs during a judge’s unexpired term, the statewide nominating commission does not find the judge’s performance is satisfactory, or the Governor does not reappoint the judge, the Governor shall appoint a successor judge for a term of 4 years in accordance with paragraph (b). § 440.45(2)(c), Fla. Stat. (emphasis added). Without a reported determination of “satisfactory” from the Commission, the Governor is required to appoint a successor Judge. In such an instance, the Governor has no legal authority to reappoint the incumbent. 3. Other than reporting on whether a sitting Judge’s performance has been satisfactory, the Commission is not statutorily authorized to make a recommendation on reappointment. 4. The Office of the Judges of Compensation Claims (“Office”) is a unit within the Department of Management Services comprised of all Judges of Compensation Claims and headed by a Deputy Judge of Compensation Claims. § 440.45(1) (a), Fla. Stat. The Office has the duty to adopt rules, including those for the Commission to follow in reviewing the performance of incumbent Judges.} The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section. Such rules must include procedural rules applicable to workers’ compensation claim resolution, including rules requiring electronic filing and service where deemed appropriate by the Deputy Chief Judge, and uniform criteria for measuring the performance of the office, including, but not limited to, the number of cases assigned and resolved, the age of pending and resolved cases, timeliness of decisions, extraordinary fee awards, and other data necessary for the judicial nominating commission to review the performance of judges as required in paragraph (2) ({c). [emphasis added] § 440.45 (4), Fla. Stat. This statutory mandate was passed sixteen (16) years ago and has remained essentially unchanged since. See Ch. 2001-91, § 26, Laws of Fla. (2001) .? 5. Pursuant to this mandate, the Office adopted the “Rules of Procedure for Workers’ Compensation Adjudications,” Chapter 600-6, Florida Administrative Code, which became effective February 23, 2003. The Chapter contains individual rules that address initial pleadings, discovery, mediation, hearings, and other procedural matters. 6. None of the rules in this Chapter contain uniform criteria for measuring performance. None of the rules cite section 440.45(2) (c), Florida Statutes, as a “law implemented.” There are no rules in this Chapter or adopted elsewhere for the Commission to follow in determining whether an incumbent Judge’s performance has been satisfactory and reporting this determination to the Governor. 7. In the absence of rules, the Commission follows a document titled “Guidelines of Operation of the Statewide Judicial Nominating Commission” (“Guidelines”) in “review[ing] the applications of Judges of Compensation Claims who seek reappointment.” Guidelines, § I.3 The Guidelines require applicants to complete an application form by a specified deadline, establish procedures for public comment, and allow the Commission to pose “questions deemed pertinent to each applicant’s fitness and qualifications to hold the judicial office.” Id., §§ I & IV. Section V of the Guidelines, titled “Standards and Qualifications; Criteria,” provides that [n]o nominee shall be recommended to the Governor for appointment unless the Commission finds that the nominee meets all constitutional and statutory requirements and is fit for appointment after full and careful consideration which consideration may include, but [is] not necessarily limited to, the following criteria: (a) Personal attributes (1) Personal integrity (2) Standing in community (3) Sobriety (4) Moral conduct (5) Ethics (6) Commitment to equal justice under law (b} Competence and experience (1) General health, mental and physical (2) Intelligence (3) Knowledge of law (4) Professional Reputation (5) Knowledge of and experience in the court involved (c) Judicial capabilities (1) Patience (2) Decisiveness (3) Impartiality (4) Courtesy (5) Civility (6) Industry and promptness (7) Administrative ability (8) Possible reaction to judicial power (9) Temperament (10) Independence 8. The Guidelines do not contain uniform criteria or a procedure for the Commission to report whether a judge’s performance has been satisfactory. Rather, the Guidelines direct the Commission to take the following action at the conclusion of the review process: When considering a Judge for reappointment, by majority vote, the Commission shall vote upon whether to recommend each particular judge for reappointment. The names of each judge considered by the Commission shall be certified to the Governor in writing, which shall include only the judge’s name and whether recommended or not. 9. The Guidelines bear an effective date of November 22, 2013, and provide that they “may be amended by majority vote of the Nominating Commission” and “may be readopted periodically at the discretion of the Commission members.” Id., § XII. The Guidelines contain no mention of the rulemaking process under Chapter 120, Florida Statutes. 10. The Guidelines have not been adopted by the Office or the Commission as a rule pursuant to the rulemaking procedures in section 120.54, Florida Statutes. The Commission has no rulemaking authority. See Fla. Att’y Gen. Op. 92-72 (1992). 11. Petitioner Gerardo Castiello is a resident of Dade County, Florida. Petitioner was appointed as a Judge of Compensation Claims for the Miami District of the State of Florida, Office of the Judges of Compensation Claims, at some point prior to 2013. In November 2016, Petitioner was serving as a Judge and seeking reappointment for another four-year term. 12. On November 1, 2016, the Commission conducted a hearing to consider Petitioner’s application for reappointment. The Commission did not vote or otherwise make a determination of whether Petitioner’s performance was satisfactory. Instead, the Commission applied the Guidelines in reaching its decision. This decision is memorialized in a letter sent by the Commission to the Governor on November 14, 2016, which contains the following statement regarding Petitioner: “The Commission did not nominate Hon. Gerardo Castiello (MIA) for reappointment.” 13. Petitioner commenced this proceeding on January 20, 2017, when, by and through counsel, he filed a Petition Challenging Agency Statements Defined as Undaopted Rules with the Division of Administrative Hearings (“DOAH”). The Petition alleges that the Guidelines meet the definition of “rules,”4 have not been adopted as rules as required by statute,® and have been relied upon by the Commission as “the basis of its denial and rejection of the Petitioner’s reappointment application.” Petition { 38. Petitioner requested a formal administrative hearing, a determination that the Guidelines are unadopted rules, and related relief. Id. @ 42. 14. DOAH did not assign an administrative law judge to preside over this proceeding within ten days after receipt of the petition as required by section 120.56(1) (c), Florida Statutes. On February 22, 2017, Petitioner filed a Motion for Appointment of Administrative Law Judge, and Notice of Objection to Consideration by Administration Commission. 15. Petitioner then filed petitions with the First and Third District Courts of Appeal beginning in February 2017 to address this issue and related matters. Among other relief, these petitions sought to compel DOAH to appoint an administrative law judge. The Commission objected to this relief, in part, on the basis that “DOAH is the real party in interest,” and this matter has “been referred to the Administration Commission for appointment of an attorney to hear the case pursuant to § 120.80(1), Fla. Stat.” Respondent’s Response to Petitioner’s Petition, Third DCA Case No. 3D17-0341 (March 8, 2017). 16. The Third District Court of Appeals ultimately denied Petitioner’s petition for writ of prohibition, writ of mandamus, and/or alternative writs and remedies. Order, Third DCA Case No. 3D17-0341 (March 29, 2017). The Court subsequently denied Petitioner’s motion for written opinion, clarification, rehearing, certification, and/or rehearing en banc. Order, Third DCA Case No. 3D17-0341 (May 3, 2017). 17. Approximately four months later, without any action by the Administration Commission, undersigned was designated by DOAH Chief Judge Cohen as the “hearing officer to conduct the hearing” in this matter under the authority of section 120.65(5), Florida Statutes. Order of Assignment at 1 (September 18, 2017). That section allows DOAH to assign a full-time state employee as a hearing officer “[i]f the division cannot furnish a division administrative law judge promptly in response to an agency request.” § 120.56(5), Fla. Stat.® 18. Based on the assignment of undersigned, the First District Court of Appeals dismissed Petitioner’s petition for writ of mandamus as moot. See Castiello v. Florida Div. of Admin. Hearings, 229 So. 3d 861 (Fla. lst DCA 2017), reh'g denied (Nov. 8, 2017). 19. After filing the petition that commenced this proceeding and while the petitions for various writs were pending before the District Courts of Appeal, Petitioner propounded discovery to Respondent. On February 13, 2017, Petitioner served on Respondent and filed with DOAH a request for admissions. Respondent did not timely answer or object to this request. 20. On September 20, 2017, after undersigned was assigned as the Hearing Officer, counsel for Petitioner sent to counsel for Respondent an e-mail stating that the request would be deemed admitted due to the failure to respond. The Commission did not respond to this e-mail, answer the request, or file an objection. 21. On December 5, 2017, Petitioner filed a Motion for Summary Order. As support for the Motion, Petitioner asserts 10 that the material facts in this proceeding are undisputed because of Respondent’s failure to respond to the February request for admissions. More than 30 days (indeed, over 9 months) have passed since the request for admissions was serviced on the SNC, and the SNC has never responded to Castiello’s request for admissions. The SNC has never moved for additional time to respond, and has not attempted to demonstrate any excusable neglect for failing to timely respond. Nor is there any possibility of any excusable neglect for the SNC’s failure to respond -— especially after the Petitioner reported the SNC’s failure to response at least three different times. 22. Respondent did not file a response to the Motion for Summary Order as allowed under Rule 28-106.204, Florida Administrative Code, and the time for doing so has expired. Respondent has not answered or objected to the request for admissions.
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceeding are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. 21
