The Issue The sole issue for disposition is whether Petitioner, Select Industries, Inc. should be placed on the convicted vendor list as provided in section 287.133, Florida Statutes (1996).
The Issue Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Effective July 1, 1997, the Department is the state agency charged with regulating the practice of medicine through the Board of Medicine ("Board"). Section 20.43, Florida Statutes; Chapters 456 and 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida Statutes, the Department has contracted with the Agency for Health Care Administration ("AHCA") to provide consumer complaint, investigative, and prosecutorial services required by the Board of Medicine. Dr. Carida is, and was at all times material to this action, licensed to practice medicine in Florida, having been issued license number ME 0019622. Since January 1, 1996, Dr. Carida has practiced medicine as an employee of D.R.C. & Associates, Inc. ("D.R.C."), and he is paid an hourly wage by the company. D.R.C. is a medical management company owned by Diane Carida, Dr. Carida's daughter, who is the company's president. D.R.C. is not a professional association, and Dr. Carida has no ownership interest in the corporation. In November 1998, Dr. Carida was the only doctor employed by D.R.C.; the company's only other employees were an echo technician, a billing clerk, and a phlebotomist who also acted as Dr. Carida's medical assistant. In November 1998, the company's net worth was approximately $10,000.00. On October 30, 1998, the Board's Probable Cause Panel considered the results of an investigation into a complaint filed against Dr. Carida by the family of patient J.M. In accordance with its contract with the Department, the investigation was conducted by AHCA, and an attorney employed by AHCA presented the case against Dr. Carida to the Probable Cause Panel. The investigative file included the medical records of patient J.M. and the report of Leonard S. Williams, M.D., a physician employed by AHCA to render an expert opinion regarding Dr. Carida's care and treatment of the patient. AHCA's attorney also presented to the Probable Cause Panel a draft administrative complaint outlining the proposed charges against Dr. Carida, and AHCA's attorney recommended to the panel that the penalty of license revocation or suspension be sought as the maximum penalty against Dr. Carida. In his report, Dr. Williams presented a summary of the medical records he had reviewed and his conclusions regarding Dr. Carida's care and treatment of patient J.M. Dr. Williams stated in the report that it was his opinion that Dr. Carida had failed to meet the applicable standard of care in his care and treatment of patient J.M. and that the medical records maintained by Dr. Carida failed to document accurately and completely his care and treatment of the patient. Two members of the Probable Cause Panel, a physician and a lay member of the Board, were present and voting at the October 30, 1998, meeting. The Probable Cause Panel was represented by an attorney employed by the Florida Attorney General. Both members of the Probable Cause Panel present at the October 98, 2000, meeting acknowledged receiving the investigative file on Dr. Carida prior to the meeting, and both determined that probable cause existed to support AHCA's charges against Dr. Carida. On November 2, 1998, as a result of the decision of the Probable Cause Panel, AHCA served on Dr. Carida a two-count Administrative Complaint charging that, with respect to patient J.M., he had practiced medicine below an acceptable standard of care and that he had failed to maintain adequate written medical records relating to his care and treatment of the patient. Dr. Carida disputed the facts asserted in the Administrative Complaint, and AHCA sent the file to the Division of Administrative Hearings for assignment of an administrative law judge. A formal hearing was held, and a Recommended Order was entered, in which it was concluded, first, that AHCA had failed to prove by clear and convincing evidence that Dr. Carida practiced medicine below an acceptable standard of care with respect to the care and treatment of patient J.M. and, second, that AHCA had met its burden of proving that Dr. Carida failed to maintain adequate medical records regarding the care and treatment he provided to patient J.M. The Recommended Order was forwarded to the Board for final agency action, and, in its Final Order, the Board dismissed the charge that Dr. Carida practiced medicine below an acceptable standard of care and concluded that Dr. Carida was guilty of the charge that he had failed to maintain adequate written medical records related to patient J.M. On the basis of this violation, the Board imposed an administrative fine on Dr. Carida in the amount of $250.00 and required that he attend an approved course on proper maintenance of medical records. The evidence presented by Dr. Carida is sufficient to establish that he was the prevailing party in the proceeding styled Department of Health, Board of Medicine v. Robert V. Carida, M.D., DOAH Case No. 99-2997, DOH Case No. 95-03135. The more serious charge brought against Dr. Carida in the Administrative Complaint was that he had practiced medicine below an acceptable standard of care, and AHCA contended before the Probable Cause Panel that the appropriate penalty to be imposed against Dr. Carida for this violation was the revocation or suspension of his license. This charge against Dr. Carida was, however, dismissed by the Board in its Final Order, and Dr. Carida was found guilty only of having failed to keep adequate medical records. The penalty imposed on Dr. Carida in the Board's Final Order for this violation clearly indicates that the Board considered the medical records charge to be a minor one. The evidence presented by Dr. Carida is not, however, sufficient to establish that he is entitled to an award of attorney's fees and costs as a small business party. Rather, at the time the action against Dr. Carida was initiated, he was an employee of a medical management corporation, which was not a party to the disciplinary proceeding.
Findings Of Fact On December 22, 1987, the undersigned held a formal hearing in the underlying case, (DOAH Case No. 87-3084), and on February 4, 1988, issued a Recommended Order to the Florida Real Estate Commission in which it was concluded that the Petitioners had violated various provisions of the Florida Statutes and that disciplinary action was appropriate. Specific disciplinary action was recommended as to each Petitioner. In its Final Order, predicated upon the above mentioned Recommended Order, the Commission adopted the undersigned's Findings of Fact and Conclusions of Law but found the recommendation for punishment as to both Petitioners was inadequate. The Commission increased each period of suspension, rejected the recommendation for stay and automatic remission as to the suspensions, and imposed an administrative fine on each Petitioner. Thereafter, Petitioners appealed the Final Order to the Second District Court of Appeal which, in an opinion filed February 17, 1989 affirmed the Commission's findings of guilt but reversed the penalties imposed by the Commission and remanded with instructions to approve the Hearing Officer's recommended penalties. It is on the basis of this appellate action that Petitioners, claiming to be prevailing small business parties, initiated the instant action. Petitioners are requesting attorney's fees in the amount of $5,261.28 for the appellate action which resulted in the District Court of Appeals reducing the penalty imposed by the Commission to that recommended by the Hearing Officer. This fee and cost figure is the cumulative of charges incurred and represented on 11 monthly billing statements starting 06-01-88 and extending through 04-01-89. Only the last eight, starting with the 09-01-88 billing, state the hours spent providing service. The Florida Legislature has defined a "prevailing small business party" at Section 57.111(3)(c), Florida Statutes.
The Issue Whether Petitioner was an "employee" of Respondent pursuant to Chapter 760, Florida Statutes, so as to be eligible to pursue her Petition for Relief from an unlawful employment practice, to wit: racial and sexual discrimination.
Findings Of Fact On or about June 16, 1999, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, alleging racial and sexual discrimination against her by Respondent, Florida Times Union. On or about December 3, 2002, the Commission entered a "Determination: No Jurisdiction," on the basis that its investigation showed that Petitioner, as an independent contractor, was not able to demonstrate her "employee" status under Chapter 760, Florida Statutes. Petitioner timely filed a Petition for Relief, and on or about January 8, 2003, the Commission referred the matter to the Division of Administrative Hearings. On January 17, 2003, an Order to Show Cause was issued, instructing Petitioner to show cause, in writing, filed with the Division, why the Division would have jurisdiction in light of the Commission's "Determination: No Jurisdiction." Petitioner did not show cause. Because Petitioner at least has a right to present evidence and to have an adjudication of the threshold issue of jurisdiction, a telephonic conference call was scheduled and went forward with both parties present on March 4, 2003.1/ An Order was entered March 6, 2003, memorializing the agreements reached in the telephonic conference call as follows: Petitioner Iris Worthy states [sic] that so far as she knew she was an independent contractor with Respondent. The parties agreed that the jurisdictional issue would be submitted to the undersigned by each one mailing/filing a copy of the "contract of employment" to the undersigned/the division.2/ Thereafter, if jurisdiction is established, the case will be tried on the merits via a notice of hearing, but if jurisdiction is not established, the case will be dismissed. The contract is entitled "Independent Newsdealer Contract." It was signed by two witnesses, Respondent's representative, and Petitioner. The contract specifically states that Petitioner is an "independent contractor," is not an employee or an agent of [Respondent], and is not subject to [Respondent's] direction or control." The contract provides in a second place, that: [Petitioner] is a separate, independent contractor and not subject to the exercise of any direction or control by [Respondent] over his [sic] method of distributing or otherwise handling the delivery of said newspaper within his area. . . . And in a third place, that: [Petitioner] shall have no proprietary interest herein. The contract provides that Petitioner had to purchase newspapers from Respondent at wholesale rates and would be paid a set amount, minus the wholesale cost of the newspapers. She had the right to select, furnish, and control her own equipment, method, and means of delivery, and to select, furnish, and control anyone she employed or with whom she sub-contracted. The contract provides that it is subject to termination by either party, with or without cause, upon 30 days' written notice, or immediately upon notice of a breach of the contract. The Petition for Relief admits that Respondent gave Petitioner a termination notice and that Respondent charged Petitioner for newspapers. The contract requires Petitioner to purchase her own insurance of all types. Under the contract, Petitioner could independently arrange, on her own, for a substitute delivery person when she was unavailable, and she was liable to Respondent if Respondent had to deliver the newspapers. Also under the contract, Petitioner did not have to comply with any of Respondent's rules, policies, or procedures.
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 Petition for Relief and Charge of Discrimination for lack of jurisdiction. DONE AND ENTERED this 11th day of April, 2003, in Tallahassee, Leon County, Florida. 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 11th day of April, 2003.
