Findings Of Fact On September 6, 2001, Petitioner Bowers filed with the Florida Commission on Human Relations (Commission) a Charge of Discrimination against Respondent, Big Red Waste, Inc. The Charge recited that the most recent or continuing date of discrimination was July 10, 2001, for a finite, one-time act of alleged unlawful employment practice, to wit: termination on the basis of race (Black) and in retaliation. One hundred and eighty days from the filing of Petitioner's Charge with the Commission would have been on or about March 5, 2002. On September 19, 2003, the Commission entered a Dismissal and Notice of Rights. On December 23, 2003, the Commission entered an Amended Dismissal and Notice of Rights. The Commission's Amended Dismissal and Notice of Rights (Amended Dismissal) recited that on May 14, 2002, the Commission had received notice that Respondent had filed a voluntary Chapter 7 Petition in Bankruptcy. Therefore, it is presumed that as of May 14, 2002, an automatic stay of proceedings before the Commission was in effect. The Commission's Amended Dismissal also stated: . . . It has been more than 180 days since Complainant's complaint was filed, and since no determination has been made due to the automatic stay that was issued in Respondent's bankruptcy case, and since Complainant has been previously notified by the Commission of his obligation to file a Notice of Claim [in the federal bankruptcy court], the Commission hereby dismisses this Charge of Discrimination and provides the following Notice to Complainant. Since the Commission did not make a determination of cause or no cause on your complaint within 180 days of the filing of the complaint, you may proceed as if the Commission determined there was reasonable cause. Section 760.11(8), Florida Statutes; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002). You must initiate a civil lawsuit within 1-year from the date of this dismissal, or an administrative action with the Division of Administrative Hearings within 35 days of the date of this dismissal, provided neither date has exceeded a total of four (4) years from the initial date of the violation. Section 760.11(4), Florida Statutes; Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). If more than four (4) years have passed once the automatic stay is lifted on Respondent's bankruptcy case, you must file your civil lawsuit, or your administrative action within 30 days of the lifting of the automatic stay. Morsani v. Major League Baseball, 739 So. 2d 610 (Fla. 2nd DCA 1999). If the Respondent has not emerged from bankruptcy, and if you determine you do not want to wait until Respondent emerges from bankruptcy, you may file a Motion for Relief from Automatic Stay, and present your argument and authorities to the bankruptcy judge assigned to Respondent's bankruptcy case. The Commission does not assist Complainants with filing the Motion for Relief from Automatic Stay. You must consult an attorney on your own for that purpose. [Bracketed material added for clarity.] One year from the Commission's December 23, 2003, Amended Dismissal will be December 22, 2004. Thirty-five days from the Commission's December 23, 2004, Amended Dismissal would have been January 27, 2004. Four years from July 30, 2001, the initial date of the violation, will be July 29, 2005. On February 12, 2004, Petitioner sent a letter to the Commission stating that the Commission's "right to sue" letter did not include a blank Petition for Relief. However, the referral packet from the Commission to the Division included no "right to sue letter." The Commission's response to the Order of the undersigned dated May 3, 2004, does not contain a "right to sue" letter. On February 17, 2004, the Commission entered an Order to Show Cause Why Case Should Not Be Closed Because of Bankruptcy Proceedings (Commission's Order to Show Cause). The Commission's Order to Show Cause noted that Respondent had filed a Voluntary Petition for Bankruptcy, Chapter 11, on October 9, 2001, and that the same case was converted to a Chapter 7 bankruptcy proceeding on May 7, 2002. The Commission's Order to Show Cause also noted that a letter advising Petitioner of the bankruptcy was sent on May 20, 2002, and that a final order distributing all assets and dismissing the bankruptcy case was entered on September 9, 2002. The Commission ordered the parties to show cause, before March 19, 2004, why the discrimination case before the Commission should not be closed. The referral packet from the Commission to the Division included a Response to the Commission's Order to Show Cause, filed with the Commission by the trustee in bankruptcy, on or about March 8, 2004. That Response recites that Respondent's Chapter 7 bankruptcy proceeding was dismissed by a September 9, 2002, Order and that "upon the dismissal order becoming final all of the assets of Big Red Waste, Inc., reverted to that corporation and the automatic stay was terminated and vacated as to all creditors and claimants against Big Red Waste, Inc." The bankruptcy court docket was provided to the Division by the Commission in response to the May 3, 2004, Order herein. Assuming a 30-day appeal period, the dismissal by the Bankruptcy Court became final, at the latest, as of October 8, 2002. Therefore, the latest date the automatic stay was lifted would also have been October 8, 2002, although the September 9, 2002, date of the Bankruptcy Court's Order would be reverted-to, absent an appeal, and there is no evidence of an appeal. According to the Commission's response to the May 3, 2004, Order herein, the Petition for Relief in the instant discrimination case was "inadvertently dated March 13, 2004," but was filed with the Commission on March 9, 2004. The Petition for Relief recites repeatedly, "see attached complaint." There was no complaint attached to the Petition in the packet referred by the Commission to the Division, and none was provided in response to the May 3, 2002, Order herein. Therefore, pursuant to the terms of the May 3, 2004, Order herein, it is presumed that the "complaint" referred to in the Petition for Relief is the September 6, 2001, Charge of Discrimination, and it may further be presumed that no continuing pattern of discrimination continued after the finite termination date of July 1, 2001. However, by the Petition for Relief, Petitioner attempted to add as a party Respondent, Respondent's president, Yvonne Kiawtkowski. Petitioner has as yet demonstrated no good cause to add Respondent's president, in her individual capacity, to this administrative discrimination case when she was not individually charged in the original Charge before the Commission. The copy of the Petition for Relief and Attachments sent to the most recent address in the Commission file for Respondent's Corporation apparently were returned to the Commission. The same has occurred with regard to all papers mailed by the Division to that address. Therefore, no Notice of Hearing can be sent by the Division to Respondent's Corporation. Telephone calls by the undersigned's secretary to Big Red Waste, Inc.'s last known phone number, which was provided in the Commission's referral packet, have resulted in an oral response that the party at that phone number is not Big Red Waste, Inc. Recently, the Commission determined that Ms. Kiawtkowski has a new personal address. On June 21, 2004, the Petition for Relief and Attachments were returned to the Commission from that address too. The Commission has stated it cannot determine whether Ms. Kiawtkowski ignored the certified mail receipt for this mailing or whether she no longer resides in that area.
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 dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 15th day of July, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wayne N. Bowers 10951 Laureate Drive, Apartment 601 San Antonio, Florida 78249 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 549 Alachua, Florida 32615 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 730981 Ormond Beach, Florida 32173
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.
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
The Issue The issue in this case is whether Respondent is guilty of sex discrimination in employment.
Findings Of Fact Petitioner was born in Puerto Rico and lived there 11 years. She speaks English fluently with a Spanish accent. Respondent is a wholesale distributor of building materials. Four- fifths of its customers are retail outlets, and the remainder are building contractors. Respondent is the largest such distributor in the Southeast and is a mid- to large- size corporation. Respondent is an employer within the meaning of Chapter 760. Answering a want ad in the newspaper, Petitioner sent David Russell, who is Respondent's controller, a resume and letter of recommendation. She had two interviews with Mr. Russell and was hired. It is unclear whether Petitioner's Puerto Rican background came up during the interview. Evidently unknown to Petitioner at the time, each of four other interviewees was offered the job and refused it before it was offered to Petitioner. Petitioner began work with Respondent on May 21, 1989, as an invoicing clerk. Her responsibilities included invoicing, copying, mailing, filing, and microfilming. Petitioner began work at an hourly rate of $5.50, which was raised after the completion of a 90-day probationary period to $6.00. After one year, she received a raise to $6.50 per hour, which remained her hourly rate through her date of termination. The raise resulted from the favorable recommendation of Mr. Russell to the president of Respondent. Mr. Russell earlier gave Petitioner preferential treatment when he recommended to the president that Respondent lend her over $1000 for surgery. Normal company policies did not authorize such loans to new employees, which Petitioner was at the time. The loan was made and later repaid. An important part of Petitioner's duties was to learn how to operate a Burroughs L-9000, which is a dedicated, automated ledger machine. The L-9000 dates back to the early days of office automation. Invoices are run through the L-9000, which performs simple mathematical functions to extend total costs based on number of units and price per unit, total costs per invoice, and total invoiced costs per day and per month. Inputting data into the L-9000 is a time-consuming process. Corrections take even more time, as each incorrect entry has to be deleted and the correct entry added. The machine has other problems, such as the loss of data during power outages. When Petitioner joined Respondent, she knew nothing about the L-9000. At the time, Shirley Rehrig, who had been employed by Respondent since October, 1985, was operating the machine. Ms. Rehrig had joined the company as an invoice operator on the L-9000 and was, by May, 1989, supervisor of the Invoicing Department. The Invoicing Department works closely with the Pricing Department, which are both part of the Accounting Department. At the time, employees in the Pricing Department manually took prices for invoiced items from books and entered them in handwriting on invoices. The process was prone to error through mistranscriptions of quantity, price, or cost. Pricing errors were only one source of invoicing errors. Additional errors could arise in invoicing, such as by misreading the handwritten information provided by the Pricing Department or misentering the data. In May, 1989, there were two persons working in the Pricing Department and, counting Petitioner, two persons working in the Invoicing Department. Speed and accuracy were important characteristics for the L-9000 operator. Petitioner's early experience with the machine was frustrating for her, Ms. Rehrig, and Mr. Russell, who was in charge of the Accounting Department. Despite repeated demands from Ms. Rehrig and Mr. Russell that she work more slowly, Petitioner continually tried to operate the machine as fast as Ms. Rehrig could operate it. The result was that Petitioner's error rate was unacceptably high and thus her processing of invoices was relatively slow. Ms. Rehrig became very upset with Petitioner and several times complained about her to Mr. Russell. Perhaps recalling the difficulty he had had filling the position, Mr. Russell tried to calm Ms. Rehrig and continually counselled Petitioner to work more slowly. Mr. Russell is a mild-mannered man, who showed great patience with his employees. He tolerated a longtime employee in the Pricing Department who, partly due to poor health, was often volatile and one time threw invoices at Ms. Rehrig. Petitioner gradually began to gain competence with the L-9000. However, she was unable to erase completely the perception of her coworkers, but not Mr. Russell, that she was the source of more invoicing errors than for which she was in fact responsible. Petitioner's high error rate gave her one advantage, though. She knew how to correct errors, which were inevitable in the invoicing process, especially given the peculiarities of the L-9000. In July, 1990, Respondent hired Alice Sweet to work in the Invoicing Department. Petitioner trained Ms. Sweet in the use of the L-9000, and soon Petitioner and Ms. Sweet were alternating on the machine. Ms. Sweet was a very good worker who was able to concentrate on her work better than Petitioner could. However, she was more timid than Petitioner in trying to fix the mistakes that she did make and often required the assistance of Petitioner or Ms. Rehrig in making the corrections. When Ms. Sweet was hired, Ms. Rehrig was given a chance to learn pricing, while still supervising invoicing. The division between the Invoicing and Pricing Departments, which are really subdepartments, is not as clear as the line between Accounting and other true departments. When Ms. Rehrig told Mr. Russell in the summer of 1991 that she would be quitting, he asked her if Petitioner or Ms. Sweet should take Ms. Rehrig's position in pricing. Ms. Rehrig recommended Ms. Sweet because she was more focused and methodical than Petitioner, but also because Petitioner could handle the L-9000 on her own and Ms. Sweet could not. Mr. Russell made the changes that Ms. Rehrig had recommended after she left the company in November, 1991. Ms. Rehrig was not contacted subsequently about problems with the L-9000 as long as Petitioner remained with the company. In October, 1991, Felicia Jones, who is an African- American, was hired by Respondent through Kelly Temporary Services. Ms. Jones was assigned to the Invoicing Department where she reviewed invoices and Petitioner's output from the L-9000. After Ms. Rehrig's departure, Petitioner alone operated the L-9000. Although improved from her early days on the machine, Petitioner continued to make errors on the L-9000, and Mr. Russell continued to ask that she improve her performance on the machine. During this time, Respondent was undergoing difficult financial times. The depression in the construction industry sharply impacted Respondent's business. Total sales were down about 1 percent between fiscal years-end June 30, 1989, and June 30, 1990. Sales plummeted 14.4 percent between fiscal years- end 1990 and 1991, and slid 4.4 percent between fiscal years-end 1991 and 1992. Although still showing earnings, profits between fiscal years-end 1990 and 1991 were almost halved, and profits between fiscal years-end 1991 and 1992 slipped another 18 percent. By sometime in the first half of 1989, Respondent had been adopted cost-containment strategies to deal with poor market conditions. Examples of Respondent's efforts included controlling the purchasing of supplies, requiring bids on goods and services, and using inventory-control mechanisms. These strategies proved ineffective in the face of seriously deteriorating market conditions in 1991. Finally, Respondent turned to reductions in force. When voluntary attrition proved insufficient, Respondent implemented layoffs. Layoffs throughout the company in each of its offices throughout the state reduced employment from 131 persons to 94 persons from January, 1989, to December, 1992. The impact in the Accounting Department was a reduction in the average workforce of 12 persons from January, 1989, through January, 1992, to 10 persons in January, 1992, and 8 persons in December, 1992. After Ms. Rehrig's departure, the president of Respondent instructed Mr. Russell to identify an employee to layoff should the president decide to make layoffs. The most likely candidates were Petitioner and Ms. Sweet. Petitioner decided that he would lay off Petitioner because Ms. Sweet was trained in invoicing and pricing and could run the L-9000, even though she was less able to correct errors than could Petitioner. Mr. Russell decided not to lay off Ms. Jones, who remained employed with Respondent through Kelly Temporary Services. Even though Respondent paid Kelly Temporary Services $7.50 per hour for Ms. Jones, Respondent owed no benefits for her. Estimating that benefits cost $1.91 per hour, Mr. Russell figured that Petitioner, who was then receiving $6.50 per hour, was costing Respondent a total of about $8.41 per hour--almost one dollar more per hour than Ms. Jones cost. The Pricing and Invoicing Departments could withstand a reduction in force. After Ms. Rehrig's departure, there had been times that Petitioner had nothing to do in invoicing. When Petitioner was terminated in April, 1992, Ms. Sweet returned to operate the L-9000 for one year. During that time, she worked exclusively in the Invoicing Department, but only about four of five days a week were required for work on the L-9000. Ms. Sweet's former duties in pricing were covered by another employee. Sometime in the second quarter of 1992, Mr. Russell discussed with Ms. Jones the possibility of her permanent employment with Respondent, rather than through Kelly Temporary Services. Because Petitioner had already filed her Charge of Discrimination, Mr. Russell decided not to pursue fulltime permanent employment with Ms. Jones until the discrimination charges were resolved. Following Petitioner's departure in April, 1992, Ms. Sweet encountered problems with the L-9000 that she could not solve. She and Mr. Russell several times contacted Ms. Rehrig, and at least once Ms. Rehrig came to the office after finishing her other work for the day to fix the problem. Mr. Russell offered her a consultation contract, which Ms. Rehrig declined. Mr. Russell and Ms. Rehrig discussed the possibility of her returning to work with Respondent, but they could not agree on acceptable conditions. Ms. Rehrig testified that, on one occasion immediately after interviewing Petitioner, Mr. Russell referred to her as a "Puerto Rican" and alluded to the excitability of Puerto Ricans. This testimony is not credited. Ms. Rehrig was displeased with Respondent for undisclosed reasons when she quit, and she became more displeased when, after being badgered by Ms. Sweet and Mr. Russell concerning the L-9000, she and Mr. Russell could not agree on adequate conditions for her reemployment with Respondent. Called as a witness by Petitioner, Ms. Rehrig initially omitted mention of her early dissatisfaction with Petitioner's work, although she admitted that she had recommended to Mr. Russell that he assign Ms. Sweet, rather than Petitioner, to the Pricing Department after Ms. Rehrig quit. The only other evidence concerning Petitioner's national origin involves Petitioner's testimony that Ms. Sweet angrily called her a "Puerto Rican" one time, that coworkers routinely assumed that Petitioner had made all errors in invoicing even when she had not, and that Mr. Russell treated her in a diffident manner. There are problems with each of these items of proof. First, Petitioner admitted that Mr. Russell did not know that Ms. Sweet had referred to Petitioner's national origin in a derogatory way. Petitioner never told Mr. Russell about this remark, nor is she aware that anyone else did. Second, the coworkers who wrongly assumed that Petitioner was responsible for invoicing errors when she was not were understandably basing their assumption on Petitioner's history of a high number of mistakes, not on her national origin. More importantly, Mr. Russell did not misperceive Petitioner's error rate. Third, Mr. Russell was not especially close with a number of employees, including but not limited to Petitioner. But he resisted Ms. Rehrig's requests to fire Petitioner, showed patience with her high error rate, and gave her one raise. Petitioner has proved a prima facie case of discrimination. She is Puerto Rican. She was generally qualified for the invoicing job. And she was replaced by Ms. Sweet, who is a white person whose national origin evidently does not place her in a protected class. However, Respondent has shown a legitimate business reason for Petitioner's layoff. Business was poor and getting worse. Petitioner's competence was marginal. Ms. Sweet, whom Ms. Rehrig herself had named over Petitioner for what appears to have been a promotion, was cross-trained and thus, for that reason alone, more useful to Respondent. And Respondent's president justifiably believed that the Invoicing and Pricing Departments could continue to operate effectively with one less employee. The quick offer of fulltime permanent employment to the less experienced Ms. Jones did not mean that she was intended to replace Petitioner. Following Petitioner's termination, Ms. Sweet worked for one year on the L-9000 before Ms. Jones, who was not even trained on the machine until August, 1992, replaced her in April, 1993. Respondent in effect gave Ms. Jones a raise when she began to operate the L-9000 by increasing the pay to Kelly Temporary Services to $8.55 per hour. However, competence in 1992 with the L-9000 was of increasingly limited utility to Respondent, which, by the time of the final hearing, had replaced the obsolete device with modern automated office equipment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on January 13, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1994 APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence. Petitioner failed to prove that the matter of her national origin arose during the interview. 6 and 8: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 9-10: adopted or adopted in substance. 11: adopted or adopted in substance except that Petitioner continued to make a high rate of mistakes on the L-9000. 12: adopted or adopted in substance, although the reasons for Ms. Rehrig's recommendations go beyond those stated in the proposed finding. 13: rejected as subordinate. 14-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. (remainder): adopted or adopted in substance. (first two sentences): adopted or adopted in substance. 18 (remainder)-20: rejected as subordinate, irrelevant, and unsupported by the appropriate weight of the evidence. 21-22: rejected as unsupported by the appropriate weight of the evidence except for positions of Respondent. 23-25: rejected as unsupported by the appropriate weight of the evidence. Subsequent events led Mr. Russell to reassess his needs and the costs of meeting these needs. However, in April 1992, he did not have the advantage of this knowledge and made in good faith the personnel decisions that he made at the time. 26: adopted or adopted in substance, but see 23-25. 27: rejected as unsupported by the appropriate weight of the evidence. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-16: adopted or adopted in substance. 17: rejected as subordinate and recitation of evidence except that Ms. Rehrig unhappily left her job with Booker. 18-19: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Craig P. Clendinen Stearns Weaver One Tampa City Center Suite 3300 Tampa, FL 33601 Michael D. Malfitano Macfarlane Ferguson 111 E. Madison St. Suite 2300 Tampa, FL 33601
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent’s Career Service Grievance Policy Statement #92/93-HR-2, is an invalid exercise of delegated legislative authority, based on an alleged conflict with Section 447.401, Florida Statutes.
Findings Of Fact The Agency for Health Care Administration (Respondent) is a state agency and a public employer. The Respondent has adopted a grievance policy providing for the resolution of employment disputes within the agency. The policy provides that an aggrieved employee may have the grievance heard by a neutral committee. The committee makes a recommendation, which is subject to review first by a designee of the agency head, and then directly by the agency head. According to the policy at issue in this case, the agency head’s decision is generally the final step in the grievance process. Under some circumstances not found in this case, decisions may be appealed to the Public Employees Relations Commission. Another procedure permits some career service employees represented by a collective bargaining agent to utilize a grievance process set forth under the master contract between the state and the bargaining agent. The union grievance provides that the agency head’s decision is appealable to the state labor relations director who has final authority over the dispute. On December 30, 1997, Diane Gossett (Petitioner), a career service employee of the Respondent, received a written reprimand from her supervisor who alleged Ms. Gossett’s conduct was inappropriate. The details of the alleged conduct were not offered at hearing. Ms. Gossett is an "excluded employee" under the State Master Contract, and therefore is not entitled to use the union grievance procedure. As provided in the Respondent’s grievance policy at issue in this case, Ms. Gossett filed a grievance challenging the written reprimand, and seeking to have it removed from her personnel file. A neutral grievance committee was appointed which reviewed her grievance. The committee recommended that the reprimand be removed from the Petitioner’s personnel file. The agency head’s designee reviewed and rejected the committee recommendation. The agency head ratified the designee’s decision. The Petitioner then challenged the agency’s compliance with personnel rules by filing a request for review with the Department of Management Services. The Department found no deviation from agency rules and refused the Petitioner’s request for additional review. The Petitioner then filed her Petition to Invalidate an Existing Agency Rule with the Division of Administrative Hearings.
Findings Of Fact Petitioner gave Respondent's June 30, 1995 correspondence, informing Petitioner that his employment contract would not be renewed, to Petitioner's attorney. That correspondence informed Petitioner that he could appeal Respondent's decision through "the appropriate administrative structure" or the formal grievance procedures contained in Respondent's Rule 6C1-7.041, Florida Administrative Code. A copy of Rule 6C1-7.041, Florida Administrative Code, was attached to the June 30, 1995 letter. Pertinent to this proceeding is the language of a portion of the rule contained in paragraph 6C1-7.041(4)(a), Florida Administrative Code, which reads as follows: Initiation of a proceeding under Section 120.57, F.S. shall be made by submitting a petition to the Clerk of the University of Florida, as provided in Rule 6C1-1.005, F.A.C. A copy of the petition should also be sent to the President of the University. The petition should be printed, typewritten, or otherwise duplicated in legible form on white paper. Unless printed, the impression should be on one side of the paper only, and lines shall be double-spaced and indented. The June 30, 1995 letter did not state the location or personal identity of the Clerk of the University. Rule 6C1-1.005, Florida Administrative Code, referenced in Rule 6C1-7.041(4)(a), Florida Administrative Code was not included in Respondent's correspondence. Rule 6C1-1.005(1), Florida Administrative Code, provides: The Clerk of the University is the administrative assistant in the Office of the General Counsel at 207 Tigert Hall, University of Florida, Gainesville, Florida 32611. In the absence of the individual holding this position, the administrative assistant to the Vice-President for Admin- istrative Affairs shall act as the Clerk of the University of Florida. Petitioner did not obtain and was not provided by Respondent with a copy of Rule 6C1-1.005(1), Florida Administrative Code. Petitioner's counsel did not know who was the Clerk of the University or where that office was located. Petitioner's counsel telephoned the University's information services on August 8, 1995, and asked for a telephone listing for the Clerk of the University of Florida at Tigert Hall. Information services was unable to provide such a telephone listing and referred counsel to the University's President. On August 8, 1995, Petitioner's counsel telephoned the office of the University's President and spoke with Lois Ivanko. A senior secretary in the President's office for eight years, Ivanko greets guests, opens and directs mail, and receives grievances. When informed by Petitioner's counsel of the need to file an administrative petition with the Clerk of the University of Florida on that very day, Ivanko said she would be happy to help counsel with the filing process and that he should send his law clerk, Joseph Marlar, to her, that she would take the petition and that she would file it. Marlar went to Ivanko's office on August 8, 1995, and spoke with Ivanko. Marlar explained that his mission was to file Petitioner's Petition For Formal Administrative Hearing. Marlar specifically told Ivanko that the document had to be filed with the Clerk of the University of Florida that day. Ivanko, ignorant of the existence of a Clerk for the University, assured Marlar that he was at the right place and that leaving the documents with her would constitute appropriate filing. Marlar left Petitioner's Petition For Formal Administrative Hearing with Ivanko who date and time stamped the document. Ivanko later brought the original to the office of the University's Vice- President of Academic Affairs. Ivanko placed a date and time stamp on a copy of the documents provided by Marlar so that Marlar would have proof of the filing of the document. All three documents, one original and two copies, were clearly entitled "Petition For Formal Administrative Hearing (CH.120)." Karen Grabel is the Clerk of the University of Florida. She has held that position since May 1993. Grabel works in the General Counsel's office, located at 207 Tigert Hall. Ivanko works in the Office of the President at 226 Tigert Hall on the same floor of the building as Grabel. Petitioner's Petition For Formal Administrative Hearing was not filed in Grabel's office by the required deadline of close of business on August 8, 1995. By order of the University's President dated August 23, 1995, the Petition was denied on the basis that it was not filed with the Clerk.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding Petitioner's Petition For Formal Administrative Hearing to have been timely filed. DONE and ENTERED this 19th day of September, 1996, in Tallahassee, Leon County, Florida. DON W. 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 19th day of September, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-33. Accepted and incorporated in HO findings, although not verbatim. Respondent's Proposed Findings 1.-3. Accepted, not verbatim. 4.-5. Rejected, relevance. 6. Incorporated by reference. 7.-8. Accepted. 9. Rejected, subordinate to HO findings. 10.-12. Accepted. Rejected, cumulative. Rejected, relevance to this proceeding. COPIES FURNISHED: Paul A. Donnelly, Esquire Post Office Box 1308 Gainesville, Florida 32602 Barbara C. Wingo, Esquire University of Florida Post Office Box 113125 Gainesville, Florida 32611-3125
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
Findings Of Fact Inverness Health Care (hereafter Inverness) owns and operates an adult congregate living facility/nursing home, located in Citrus County. Inverness proposes to operate solely as a nursing home, which requires that 20 of the ACLF beds become licensed as nursing home beds. It is necessary, as a prerequisite for licensure, that Inverness obtain a certificate of need (CON) for the 20 nursing home beds. Inverness properly and timely filed a letter of intent, stating that it would apply, in the May 1989 batching cycle, for a CON for the 20 nursing home beds. Thereafter, Inverness timely filed the application and tendered the appropriate fee. The Department of Health and Rehabilitative Services (hereafter Department) refused to accept the application, and returned the application and the fee to Inverness. The Department cited the failure of Inverness to include certain financial information in the application as grounds for the refusal to accept the filing. Section 381.707, Florida Statutes, in relevant part, states that an application for a certificate of need "shall contain" such items as, in the case of an existing facility, a balance sheet and a profit-and-loss statement of the two previous fiscal years' operation. The application filed by Inverness, an existing health care facility, contained a balance sheet and a pro fit-and-loss statement for only it's most recent fiscal year. Inverness was not provided with an opportunity to supply the omitted material. Section 120.60(2), Florida Statutes, provides that, "within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. . . . Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period." A license means "a franchise, permit, certification, registration, charter, or similar form of authorization required by law...." Section 120.52(9), Florida Statutes. A certificate of need is a license. Section 381.709(3)(a), Florida Statutes, provides that within 15 days following the CON application filing deadline, Department staff "shall determine" whether the application is complete, and further states, "[i]f the application is incomplete, the staff shall request specific information necessary for the application to be complete. . . . If the requested information is not filed with the department within 21 days of the receipt of the staff's request, the application shall be deemed incomplete and withdrawn from consideration. Sections 120.60(2) and 381.709(3)(a), Florida Statutes, clearly require agencies to review applications, notify applicants of errors and omissions in applications, and provide opportunity to correct such flaws. There is no evidence which would indicate that CON applications are exempt from such procedures. As adopted by the Department, Rule 10-5.008(1)(d), Florida Administrative Code, provides as follows: (d) Certificate of Need Application Submission. An application for a certificate of need shall be submitted on HRS Form 1455, August 1985, incorporated by reference herein, and shall be provided by the Office of Regulation and Health Facilities upon reguest. An application shall not be deemed complete by the department unless all information requested by the department and provided for in the application form has been submitted on the form by the applicant. An application submitted to the Office of Regulation and Health Facilities on an incorrect form, or which omits the minimum requirements specified by the department on the application form, and does not include documentation that the notice of filing has been published in a newspaper of general circulation in the applicable district or subdistrict affected by the proposal in the form specified in paragraph (l) (c) of this rule, shall not be accepted by the department. (emphasis supplied). Sections 120.60(2) and 381.709(3)(a), Florida Statutes, clearly require the Department to notify an applicant of errors or omissions, and further require the Department to afford the notified applicant an opportunity to cure an incomplete application. In relevant part, Rule 10-5.008(1)(d) directly modifies and contravenes the statutes. The Department asserts that there are two levels of information which a CON applicant must provide. Initially, there are the "mandatory" items specified at section 381.707, Florida Statutes, without which an application is not an "application." Secondarily, there is information related to the review criteria enumerated at section 381.705, Florida Statutes, by which the Department determines whether the CON should be awarded. The Department's position is that only an application which contains the items listed at section 381.707 is entitled to review, notification of apparent defects, or the opportunity to cure omissions or errors The evidence does not support the Department's position. The Department suggests that legislative changes adopted in 1987, apparently intended to improve the CON application process, underlie it's decision to preclude the mandated-review of applications for completeness, errors and omissions. The statutes do not indicate that the Department's position is correct. Prior statutes likewise established a list of items which CON applications "shall contain," yet the agency permitted applicants to furnish such items during the review period which the Department now claims is inapplicable. While 1987 legislation may have indicated that the Department could consider additional materials in determining whether an application met the relevant criteria, there is nothing to suggest that statutory modifications were designed to permit the Department to disregard sections 120.60(2) and 381.709(3)(a), Florida Statutes, which specifically provide an applicant with the opportunity to make an application complete and correct. Inverness challenges as an invalid exercise of delegated legislative authority, Department "policy" related to the Department's rejection, without review, of applications which fail to comply with requirements contained in supplementary materials provided to CON applicants. Neither the policy nor the materials have been adopted through appropriate rulemaking procedures. (In the relevant batching cycle, such supplementary materials apparently indicated that applications include the items enumerated by section 381.707, Florida Statutes, or risk rejection without review.) The policy was communicated through public workshops held by the Department, and was subsequently the subject of notice published in the February 17, 1989 issue of Florida Administrative Weekly. The Department asserts that the policy and the supplementary materials require no more than that which the statute dictates an "application" contain. The Department further asserts that it is the Rule 10-5.008(1)(d) reference to the omission of "minimum requirements specified by the department on the application form", not "non-rule policy," which is applicable to this case. Rule 10-5.008(1)(d), Florida Administrative Code, identifies the application form as HRS Form 1455, August 1985. As incorporated by reference in the above-cited rule, HRS Form 1455, August 1985, is a one page form entitled "APPLICATION FOR CERTIFICATE OF NEED," which provides for identification of the legal entity making the application, the authorized representative of the applicant, and the location, type, and cost of the proposed facility. The rule does not make reference to supplementary materials, statutorily-required items, or otherwise indicate that forms, materials, or information, other than as specifically identified on the single-page form, are required in the initial CON application filing. The fact that the Department issues supplementary materials listing the items which must be filed by the application deadline suggests that such is not clearly stated in the official application form. The requirement that section 381.707 items be filed by the application deadline is not by statute or adopted rule, but is Department policy. In material part, section 120.52(16), Florida Statutes, defines a "rule" as "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency. " The policy of the Department which provides that CON applications must comply with requirements stated within supplementary materials is a "rule" in that it is an agency statement of general applicability implementing law and describing the practice requirements for submission of a CON application. The Department has not officially adopted the "rule," or adopted or incorporated the materials, and has therefore materially failed to follow the applicable rulemaking procedures set forth in section 120.54, Florida Statutes.
