The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S 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 20th day of August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether Respondent failed to maintain good moral character by engaging in sexual conduct while on duty as a police officer and making false statements under oath, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for the certification and regulation of law enforcement officers in Florida. Petitioner certified Respondent as a law enforcement officer on April 3, 1987, pursuant to certificate number 38354. During the fall of 2002, Respondent was employed as a police officer by the Sanford Police Department in Sanford, Florida. Respondent frequently conducted official business at a local Wal-Mart when Respondent was on duty and also visited the Wal-Mart for personal reasons when Respondent was off duty as a police officer. At the Wal-Mart, Respondent developed both a professional and personal relationship with Ms. Sheila Gill, a loss prevention employee at the Wal-Mart. Respondent and Ms. Gill spoke frequently both in person and by telephone. Some of the telephone conversations between Respondent and Ms. Gill included sexual banter. When Respondent and Ms. Gill talked in person at the Wal-Mart, the two usually stood close to one another or arm-in-arm, exhibiting personal intimacy. Respondent and Ms. Gill were sometimes together in the loss prevention office at the Wal-Mart when no one else was present. The loss prevention office has one door and no windows. Security personnel at the Wal-Mart use the loss prevention office, in relevant part, to process individuals accused of shoplifting and to transfer the custody of accused shoplifters to police officers, including Respondent. At all times relevant to this proceeding, the loss prevention office was equipped with a closed-circuit television camera to permit Wal-Mart security personnel to monitor the loss prevention office and to provide a videotape record. On October 13, 2002, Respondent and another police officer responded to a call from Wal-Mart security personnel regarding an accused shoplifter. After the other police officer left the loss prevention office with the accused, Respondent and Ms. Gill were alone in the office. They moved to an area of the office in which the video camera recorded only a portion of their actions. Respondent and Ms. Gill then engaged in sexual conduct at about 4:11 p.m., while Respondent was on duty for the Sanford Police Department. On October 27, 2002, Respondent was on duty for the Sanford Police Department and was alone with Ms. Gill in the loss prevention office at the Wal-Mart. Ms. Tracy Harden was employed at the Wal-Mart as the Assistant Store Manager. Ms. Harden attempted to enter the loss prevention office in response to a complaint of a stolen wallet that Ms. Harden received from a customer. Ms. Harden found the door locked. Ms. Harden unlocked the door, entered the loss prevention office, and observed Respondent and Ms. Gill alone together in the office. Respondent and Ms. Gill were sitting embraced and quickly separated when Ms. Harden entered the room. Ms. Gill was not working at the Wal-Mart on October 27, 2002. After observing Ms. Gill in the loss prevention office with Respondent, Ms. Harden met with Ms. Gill to question her about her presence in the store that day and her conduct with Respondent. Ms. Harden suspended Ms. Gill and directed her to leave the store. Ms. Harden retrieved the videotape from the security camera in the loss prevention office. However, she did not view the tape because she did not know how to operate the equipment. Ms. Harden locked the tape in the filing cabinet in her office and left work for the day. When Ms. Harden arrived at the Wal-Mart the next day, she found the filing cabinet in her office dented and its lock broken. Upon examining the contents of the cabinet, Ms. Harden discovered the tape was the only item missing from the filing cabinet. Ms. Gill had taken the videotape from the filing cabinet and discarded it. Ms. Harden complained to the Sanford Police Department about Respondent's behavior with Ms. Gill in the Wal-Mart loss prevention office on October 27, 2002. The Sanford Police Department conducted an internal investigation into the complaint. The internal investigation included an interview with Respondent on November 7, 2002. Respondent made two false statements under oath. Respondent denied that, on October 27, 2002, Respondent was touching Ms. Gill or in close proximity to Ms. Gill in the loss prevention office. Respondent also denied ever touching Ms. Gill, hugging her, having any type of close physical contact with her, or engaging in any inappropriate or unprofessional conduct with Ms. Gill while Respondent was on duty for the Sanford Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character and revoking Respondent's certification. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 14th day of April, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kristine R. Kutz, Esquire 200 East Robinson Street, Suite 200 Orlando, Florida 32801 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Petitioner challenges the validity of Rule 3SF-2.13, Florida Administrative Code. 1/
Findings Of Fact Based on the entire record compiled herein, including the parties' factual stipulation, the following relevant facts are found. MISSION Insurance Co. (MISSION) is a corporation duly authorized to issue insurance policies, including workers' compensation insurance policies in the State of Florida. MISSION conducts its adjusting operations at North Regency One, Suite 400, 985 Regency Square Boulevard, Jacksonville, Florida. In the regular course of its business, MISSION adjusted the worker's compensation claim of Katrine Graham, who was injured on April 30, 1984 in an accident arising out of and in the course of her employment with Smiley's Mobey Dick Restaurant. MISSION received notice of the accident on May 21, 1984. On September 1, 1984, MISSION filed with the DIVISION its initial Injury Progress report (LES From BCL-13), in connection with the claim. On February 11, 1985, MISSION received from the DIVISION's Bureau of Workers' Compensation Carrier practices a letter dated February 4, 1985, notifying MISSION that the Bureau had assessed against MISSION the penalty of $100.00 for filing the form 11 days after the time prescribed by Rule 38F-3.16, F.A.C. A copy of the letter is attached hereto as Joint Exhibit "A." Since at least 1979, the DEPARTMENT has had a policy of imposing a fine of $100.00 on any insurance carrier who files its initial Injury Progress Report (LES From BCL-13) more than 105 days after it receives notice of the accident. The DEPARTMENT applies this policy, through its Bureau of Workers' Compensation Carrier Practices, to all insurance carriers and self-insured employers who come within the jurisdiction of the DEPARTMENT. The DEPARTMENT imposes penalties for the untimely filing of forms other than the BCL-13 form. The penalties to be imposed for the untimely filing of the BCL-13 form, as well as other forms, are stated in a "Penalty Assessment Chart," a copy of which is attached hereto as Joint Exhibit "B." At the time the subject penalty was imposed on MISSION, this chart was used by the DEPARTMENT's workers' compensation examiners in determining whether a penalty should be imposed and, if so, the amount of the penalty. The DEPARTMENT did not implement or use Chapter 120 rulemaking procedures to adopt the Penalty Assessment Chart, or the policy it represents, as a rule. PETITIONER'S POSITION Petitioner contends that the Penalty Assessment Chart amounts to an unpublished rule which has the effect of exacting a penalty for "late" filing in excess of Respondent's legislative authority inasmuch as Respondent is only authorized to impose a penalty based on a carriers failure or refusal to file forms, reports, or notices pursuant to Section 445.185(9), Florida Statutes. Petitioner avers that in the absence of specific statutory authorization for Respondent to impose a penalty or assessment for an untimely filing, there is no basis upon which Respondent can impose the penalty involved herein, that the rule should be declared invalid and the $100.00 penalty imposed based thereon, should be rescinded. RESPONDENT'S POSITION Respondent avers that timely filings are inextricably tied to the Division's reporting requirements and that to conclude that a carrier could file reports, notices, etc. at will, without any directive, would lead to an absurd result in contravention of Respondent's long-standing reporting policy which has been effective since approximately 1979. Finally, Respondent urges that the legislature has authorized it to exact penalties for late filings based on the authority granted in Sections 440.185(5) and (9), Florida Statutes.
Recommendation Based on the foregoing, it is ORDERED that the subject petition to determine the invalidity of Rule 38D- 17.023(2)(b), Florida Administrative Code, is granted, and Rule 38D- 17.023(2)(b), Florida Administrative Code, is found to be an invalid exercise of delegated legislative authority. DONE AND ORDERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 30th day of July, 1996. COPIES FURNISHED: Claire D. Dryfuss, Esquire M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack E. Ruby, Esquire 2596 Seagate Drive, Suite 100 Tallahassee, Florida 32301-5032 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Findings Of Fact Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue is whether Petitioner's request for attorney's fees and costs should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In these cases, Petitioner, Couch Construction, L.P., seeks to impose sanctions against Respondents, Darel Holland (Holland) and Diane Lowery (Lowery), on the ground that they allegedly filed petitions for an improper purpose challenging the issuance of a permit by the Department of Environmental Protection (DEP). In responsive papers filed by Respondents, both deny that the actions were initiated for an improper purpose. The facts in the underlying DEP case involving Holland (OGC Case No. 98-3015) show that on October 30, 1998, Petitioner published a copy of DEP's Notice of Intent to Issue Permit to Petitioner authorizing the construction of a hot mix asphalt concrete plant at 2780 North Highway 95-A, Cantonment, Florida, with potential emissions of up to 29 tons per year of particulate matter. After learning of the proposed action, various citizens in the Cantonment area signed a petition opposing the project. In addition, a local attorney, John T. Reading, Jr., Esquire (Reading), offered to provide them with pro bono assistance as a "community service." Among other things, Reading prepared a form petition challenging the issuance of the permit and requesting a formal hearing. That form was apparently made available to the local citizens so that they could sign and file it, if they chose to do so. Holland says that he did, and it is fair to infer that this form was the source of Lowery's petition as well. Holland lives only 9 blocks from the proposed plant and suffers from a lung disease which has left him with only 58 percent of his lung capacity. Because of his legitimate concerns about the projected amount of particulate emissions and their potential effect on his respiratory system, on November 12, 1998, he filed in proper person a Petition for Formal Administrative Hearing challenging the proposed issuance of the permit. Holland's petition alleged that he was a property owner in the area where the plant would be constructed; that "due to respiratory problems," he would be "substantially affected by the permitted 29 tons of particulate emissions"; that his property "may be substantially reduced in value and peaceful enjoyment" as a result of the permit being issued; and that the petition was not "being interposed merely for the purposes of delay, or any other improper purpose as listed in F.S. 120.57(1)(b)(5)." There was no showing that the petition was filed for an improper purpose or that Holland's concerns were not genuine. Holland's petition also requested an extension of time "to determine which rules or statutes require reversal or modification of the Department's action" and "to obtain counsel" to assist him in his action. On December 21, 1998, DEP entered an order dismissing Holland's petition on the ground that he failed to allege the information required by Rule 28-106.201(2)(e), Florida Administrative Code. It also determined that no good cause had been shown to warrant an extension of time for Holland to determine if any rules or statutes supported his position. He was, however, granted leave to file an amended petition within 15 days from the date of service of DEP's dismissal order (December 23, 1998). This meant that an amended petition had to be filed with DEP no later than January 7, 1999. After learning that his petition had been dismissed, Holland had a brief conversation with Reading about the dismissal and was left with a somewhat vague understanding that Reading "would get an extension" from DEP. Thereafter, on January 12, 1999, or 5 days after the due date, Reading filed with DEP an Amended Petition of Darel Holland for Administrative Hearing. The petition was signed by Reading, and it represented that a copy of the petition had been served on Petitioner's counsel on January 5, 1999. On January 14, 1999, Reading also filed with DEP on behalf of Holland a paper styled Plaintiff's Motion to Enlarge Time in which Reading claimed that "due to circumstances not known," the amended petition had not been timely filed. Reading accordingly requested that DEP authorize the untimely filing. By order dated January 28, 1999, DEP denied the Motion to Enlarge Time and dismissed the amended petition, with prejudice, as being untimely. No appeal from that final agency action was taken. Lowery did not attend the final hearing. However, according to Holland, Lowery lives only 500 feet from the proposed cement plant. She boards horses on her property and frequently has children visit the property to ride their horses. The papers filed in her underlying case (OGC Case No. 98-2932) reflect that the facts in that case are essentially the same as those involving Holland. On November 12, 1998, Lowery filed in proper person a Petition for Formal Administrative Hearing which was virtually identical to the petition filed by Holland. As an additional ground, however, she alleged that the October 30, 1998, notice published by Petitioner was defective, and she requested that DEP require Petitioner to re-advertise the matter. There was no evidence that this petition was filed for an improper purpose or that Lowery's concerns were not genuine. On December 21, 1998, Lowery's petition was dismissed by DEP because she had failed to comply with the requirements of Rule 28-106.201(4), Florida Administrative Code. Like Holland, she was given until January 5, 1999, in which to file an amended petition. In papers filed by Lowery after this sanction proceeding arose, she denies that she had any knowledge that any further papers in the permit case would be filed on her behalf after the DEP dismissal order was entered. In any event, on January 12, 1999, or five days after the due date, Reading filed on Lowery's behalf with DEP an Amended Petition for Formal Administrative Hearing which was identical to that filed on behalf of Holland. Also, on January 14, 1999, Reading filed a Plaintiff's Motion to Enlarge Time seeking to excuse his tardiness in filing the amended petition. Both papers were served on Petitioner's counsel. On January 28, 1999, DEP entered its Final Order Denying Motion to Enlarge Time and dismissing Lowery's amended petition, with prejudice. No appeal from that final order was taken. Because no appeal was taken by either Respondent, DEP's intent to issue a permit became final, and it is fair to infer that a permit has been issued to Petitioner. On January 7, 1999, or prior to DEP's final order of dismissal, Petitioner's counsel noticed both Respondents for a deposition in Pensacola, Florida, on January 14, 1999. Because Reading had signed the amended petitions, Petitioner's counsel logically served the notices by Federal Express on Reading. However, Reading failed to notify Respondents, and neither he nor Respondents appeared at the deposition or advised counsel prior to the depositions that they would not appear. As a result, Petitioner incurred the costs and fees for having its counsel travel to Pensacola. In addition, Petitioner presumably incurred the cost of a court reporter's appearance fee. Assuming that Petitioner's claim is meritorious, those costs would be the responsibility of Reading, and not Respondents. At the hearing, it was represented that Reading is no longer a member of the Florida Bar. This is because in an unpublished order dated January 7, 1999, the Florida Supreme Court revoked his license to practice law effective 30 days thereafter, or on February 7, 1999. His current address is unknown. Petitioner has asserted that in defending against Respondents' petitions, "the bulk" of its costs and fees are related to the deposition and that a few other undisclosed fees and costs have been incurred. At the final hearing, Petitioner did not specify the amount of fees and costs that it seeks or provide any breakdown of those amounts; rather, it opted to provide an affidavit detailing those costs after this final order is rendered, assuming it prevails in this action.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 1, 2011, and the Amended Order of Penalty Assessment issued on April 19, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 1, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Section 120.569 and 120.57, Florida Statutes. 2. On April 1, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 19, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $12,985.36 against LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 4. On April 29, 2011, the Amended Order of Penalty Assessment was. personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC failed to answer the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to the statutory provisions referenced herein.
Findings Of Fact The Petitioner is a prevailing small business party. In 2009, the Petitioner filed an application with the Respondent to transfer his Class B air conditioning contractor's license from one business entity to another. The application form required disclosure of an applicant's criminal history. The Petitioner responded to the inquiry with a cursory disclosure of prior criminal activity, indicating that he had been involved in such activity in the "late 1970's." As part of the application review process, the Respondent conducted a background investigation that revealed the Petitioner's criminal history had extended well beyond the 1970's. Rather than deny the Petitioner's transfer application, the Respondent issued a Notice that provided, in relevant part, as follows: NOTICE OF INTENT TO APPROVE WITH CONDITIONS You are hereby notified that the Construction Industry Licensing Board (Board) voted to permit, WITH CONDITIONS, your application for change of status from one business entity to another contractor's license. The Board reviewed and considered the application at a duly-noticed public meeting held on September 10, 2009 in Tampa, Florida. The Board determined that the application should be approved with conditions based on the following: The applicant failed to sufficiently demonstrate financial stability and responsibility, pursuant to section 489.115, Florida Statutes, and Rule 61G4-15.005, Florida Administrative Code. The Board had issues with applicant's moral character, pursuant to section 489.111, Florida Statutes. Pursuant to section 455.227(2)(f), Florida Statutes, Applicant shall hereby be placed on PROBATION for 6 years, with 12 satisfactory appearances, according to the following terms: Applicant shall be required to appear before the Probation Committee of the Board at such times as directed by the Board Office, approximately every six (6) months. Respondent's first probationary appearance requires a full day attendance at the Board meeting. In connection with each probation appearance, Applicant shall answer questions under oath. In addition, applicant shall provide such other information or documentation as is requested by the Department, the Board, or the Probation Committee. Applicant shall forward said documentation to the Board at least 30 days in advance of the probation appearance or as otherwise directed. The burden shall be solely upon Applicant to remember the requirement for said appearance and to take necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. Applicant shall not rely on getting notice of said appearance from the Board or the Department. Should Applicant violate any condition of the probation, it shall be considered a violation of Section 489.129(1)(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Applicant fail to make a satisfactory appearance as determined by the Board, the term of the probationary period shall be automatically extended by six (6) months. If there occurs a second such failure then the term of the probationary period will be extended an additional year. Should the Board determine a third failure of Applicant to make a satisfactory appearance, the stay of suspension of the Applicant's license to practice contracting shall be lifted and the license shall remain in suspended status unless and until a further stay is granted by the Board. Should Applicant's license to practice contracting be suspended or otherwise placed on inactive status, the probation period shall be tolled and shall resume running at the time Applicant reactivates the license, and Applicant shall serve the time remaining in the term of probation. To ensure successful completion of probation, Applicant's license to practice contracting shall be suspended for the period of probation, with the suspension stayed for the period of probation. The time of the suspension and the stay shall run concurrently with the period of probation. If Applicant successfully completes probation, the suspension shall terminate. If Applicant fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the license shall remain in suspended status unless and until a further stay is granted by the Board. The Petitioner challenged the imposition of the conditions in DOAH Case No. 10-9444. The Notice cited section 455.225, Florida Statutes, as providing authority for the imposition of the conditions to the Petitioner's license. The referenced statute identified the procedures through which the Respondent could commence a disciplinary action against a licensee. There was no evidence that the Respondent had commenced or concluded a disciplinary proceeding against the Petitioner prior to the proposed imposition of the license conditions. The Notice identified two reasons for the proposed imposition of license conditions. First, the Notice stated that the Respondent "had issues with the [Petitioner's] moral character." Second, the Notice stated that the Petitioner "failed to sufficiently demonstrate financial stability and responsibility pursuant to section 489.115, Florida Statutes and Rule 61G4-15.006, Florida Administrative Code." At the hearing on May 26, 2011, the Petitioner submitted evidence sufficient to demonstrate compliance with the cited provisions of statute and rule. A Recommended Order was issued on July 1, 2011, recommending that the Petitioner's application be approved. As set forth in the Recommended Order, the Administrative Law Judge had determined that the Respondent lacked authority to impose disciplinary conditions absent commencement of a disciplinary proceeding, and the Petitioner had complied with the requirements related to financial stability and responsibility at the hearing. By Final Order dated September 8, 2011, the Respondent granted the Petitioner's license transfer application. The Final Order adopted the Findings of Fact set forth in the Recommended Order. The Final Order rejected four paragraphs from the Conclusions of Law section of the Recommended Order that addressed the Respondent's authority to impose disciplinary conditions under the circumstances of this case. The remaining Conclusions of Law in the Recommended Order were accepted. The Petitioner is seeking an award of attorney's fees of $41,554.00 and costs of $1,702.96, for a total award of $43,256.96. The evidence fails to establish that the amount of the attorney's fees and costs sought by the Petitioner are reasonable, and there has been no stipulation by the parties thereto.
