The Issue Whether the petitioner's application for renewal of his community association manager's license should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Mr. Richter is a licensed community association manager, having been issued license number 1,439 by the Department in 1988. Mr. Richter's community association manager's license was renewed by the Department in 1990 and 1992. Mr. Richter is also licensed by the Department of Business and Professional Regulation as a real estate broker and as a Certified Public Accountant. The Department of Business and Professional Regulation, through its Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency charged with the administration of chapter 468, part VIII, Florida Statutes, and is specifically responsible for reviewing and approving applications for renewal of community association manager's licenses. The Bureau of Condominiums carries out this function. Community association manager's license renewal applications for the 1994 renewal year were required to be postmarked no later than September 30, 1994. On or about September 15, 1994, Mr. Richter mailed his completed 1994 license renewal application to the Department, together with a check made payable to the Department in the amount of $50.00, the required license renewal fee. In late November 1994, Mr. Richter telephoned the Department and inquired about the status of his renewal application. He spoke with Donald Sapp, an employee of the Bureau of Condominiums, who told him that the Department was behind in processing renewal applications for community association manager's licenses. The Department completed processing applications for the 1994 renewal period in mid-January 1995. On February 17, 1995, Mr. Richter telephoned the Bureau of Condominiums and advised Mr. Sapp that he had not received his 1994 license and that the check he wrote for the fee had not cleared his bank. Mr. Sapp stated that he would look into the matter and call Mr. Richter back. On February 21, 1995, Mr. Sapp telephoned Mr. Richter and advised him that the Department had no record of having received his 1994 license renewal application and check. Mr. Sapp asked Mr. Richter to send the Department a copy of his check register for the period including September 15, 1994, a copy of his bank statements for September, October, and November 1994, and a copy of a stop payment order on the check he wrote for the license renewal fee. On February 22, 1995, Mr. Richter sent Mr. Sapp, via Airborne Express, a copy of his check register and of the requested bank statements. He refused to place a stop payment order on his check, however. On March 10, 1995, Mr. Richter sent the Department a replacement check in the amount of $50.00 for the 1994 license renewal application fee. This check was received and, in accordance with standard procedure, deposited by the Department. Mr. Richter completed all of the continuing education hours required for license renewal prior to September 30, 1994. Mr. Richter has proven by a preponderance of the evidence that he timely mailed his 1994 license renewal application and that he should be granted a community association manager's license for 1994-1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order finding that Michael Richter's 1994 community association manager's license renewal application was postmarked prior to the September 30, 1994, deadline and granting Mr. Richter's application for a renewal license for 1994-1996. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of April 1996. PATRICIA HART MALONO 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 2nd day of April 1996.
The Issue The issue to be resolved in this proceeding concerns whether Lagoon Oaks, Inc., (Petitioner) is entitled to an award of attorney's fees, pursuant to Section 57.111 Florida Statutes, by becoming a prevailing party in accordance with the final order issued by the Department of Health and Rehabilitative Services (Department) in the underlying case related to this proceeding which is Case No. 95-4394. The primary issue concerns whether the Agency's intended action was "substantially justified." Additionally it must be determined whether the Petitioner is a "small business party" in terms of its net worth.
Findings Of Fact The preponderance of the testimony and evidence of record establishes that the Petitioner, Lagoon Oaks, Inc.'s domicile and principal office is located in Panama City, Bay County, Florida. Lagoon Oaks is a de Jure Florida corporation. It has no employees and has a net worth which does not exceed $2 million. Additionally, it is established that Lagoon Oaks, Inc., is a "prevailing small business party," inasmuch as the above- referenced final order has been entered by the Department granting Lagoon Oaks' permits, which were originally denied, thereby sustaining Lagoon Oaks' position that it was entitled to the permits pursuant to applicable Florida Statutes and Rules. That order has not been reversed on appeal and the time for seeking judicial review thereof has expired. Further, this case qualifies as an "administrative proceeding pursuant to Chapter 120 initiated by a state agency." The agency herein was required by law to advise the Petitioner of a clear point of entry after some recognizable event in the investigatory or other proceeding by the agency, to wit, the denial of the sought permits. See Section 57.111(3)(b), Florida Statutes. The Petitioner has requested and the undersigned takes "judicial notice" of the original record in this proceeding including the transcript of the hearing in DOAH Case No. 95-4394, pursuant to Rule 60Q.2010, Florida Administrative Code. The Findings of Facts and Conclusions of Law in the Recommended Order entered by the undersigned in that proceeding are hereby adopted and incorporated by reference herein as well. In the final order entered, the Department found and conceded that: ". . . the Department did not follow the applicable rules in Chapter 10D-6 Florida Administrative Code, in denying the permit applications. The site evaluation forms do not identify a recognizable water body (ie. a normally wet drainage ditch), nor do they establish the presence of surface water for the requisite 72 hours following rainfall. The forms do not indicate the setback which exists from the proposed system to the disputed feature. The forms are not signed or dated. The observed water table and estimated wet season water table are not provided, nor is high water table vegetation indicated. The extensive soil sampling that was detailed at the hearing is not described. Much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Finally, the denial letter, as noted by the hearing officer, references a 'normally wet area' which is not a 'surface water' feature described in statute or rule that may justify denial of a septic system permit. (footnotes omitted)." The Department has thus conceded that it did not follow its own rules in denying these permits, that the documentation allegedly supportive of the denial was incomplete and did not justify the denial and that much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Thus, when the intended agency action was taken (the denial) by the Department's own admission, it had not gathered much of the evidence which it contended supported its position concerning presence of the surface water involved in the underlying proceeding. Attorney's fee affidavits required by Section 57.111(4)(b)1. Florida Statutes and submitted by the Petitioner demonstrate that Lagoon Oaks incurred the sum of $17,950.00 in attorney's fees and $2,281.98 in costs in the course of this proceeding. Additionally, the affidavit of R. Steve Lewis, Esquire, illustrates that Lagoon Oaks incurred an additional $2,707.50 in attorney's fees for services he performed for this proceeding (This is not inclusive of any fees or services for which Mr. Lewis might have become entitled for work done unrelated to the subject proceeding). The attorney's fees submitted and represented by affidavit (Exhibit E) by Attorney Lee Killinger, counsel of record, alone exceed the $15,000.00 limit provided for in Section 57.111(4)(d)2, Florida Statutes. Testimony and evidence adduced at hearing demonstrates that the fees and costs claimed are reasonable under the circumstances of the underlying case and this proceeding.
Findings Of Fact The Petitioners James I. McKee and James Cone are registered physical therapists licensed in Florida under Chapter 486, Florida Statutes. Petitioners McKee and Cone are engaged in the private practice of providing physical therapy services. Physical therapy is the treatment of injured or crippled individuals through physical agents such as heat, ultrasound and electrical stimulation treatments, and therapeutic exercise. Physical therapy patients are referred to private practitioners such as Petitioners by prescription from physicians. Petitioners, as a substantial part of their practices, treat workers who have been injured in job-related accidents and receive payment for their services from workers' compensation insurance carriers. Respondent is the state agency responsible for administering the workers' compensation program in Florida. Respondent has proposed Rules 38F- 7.01 through 38F-7.03 and 38F-7.10 through 38F-7.13 for adoption. These proposed rules constitute the proposed fee schedule for the workers' compensation program, and include a proposed fee schedule for physical therapy services. The proposed fee schedule was presented to the Respondent by a three- member panel consisting of the Secretary of Labor and Employment Security, the State Insurance Commissioner, and the State Medical Consultant of the Division of Workers' Compensation. Respondent's rules have not in the past included a fee schedule for physical therapy services provided by practitioners such as Petitioners McKee and Cone. Rather, such services have been compensated on the basis of a case- by-case determination of the charges that prevail in the same community for similar treatment of injured persons of like standard of living. The proposed fee schedule would set maximum limits for such fees. The proposed fee schedule would have applicability statewide. Different fee schedules for different geographic locations have not been proposed. Petitioners McKee and Cone presently charge higher fees for injured workers and receive more compensation than they would receive under the fee schedule set out in the proposed rules. Furthermore, prevailing fees charged by physical therapists are generally higher than the maximum fees set out in the proposed rules. There is a statistically significant difference in fees for physical therapy services that are charged in different areas of the state. Fees for services in Southeast Florida are uniformly higher than fees for the same services in other areas of the state. The three-member panel which proposed the fee schedule for physical therapy services considered the present fee schedule, which does not set maximum charges for physical therapy services; a schedule utilized under the medicare program for physical therapy services; and a schedule set out in a document prepared by the Florida Medical Association, Inc., entitled "1975 Florida Relative Value Studies." No consideration was given to setting different fees in different areas of the state. The medicare schedule considered by the panel sets different rates for different areas of the state. The panel utilized a schedule in the mid-range from the medicare schedule in arriving at its proposed schedule. Respondent promulgated an economic impact statement in support of the proposed rules. The economic impact statement does not contain any estimate of the economic impact of the proposed fee schedules upon physical therapists such as Petitioners . The panel which proposed the schedules did hear objections from various physical therapists, but did not change its proposed schedule in response. The proposed schedule has a significant economic impact upon physical therapists because there has not been a maximum fee schedule applied to physical therapists in the past. Furthermore, the schedule would allow less compensation to such therapists than has typically been allowed in the past.
The Issue Whether Respondents violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers' compensation coverage, as alleged in the Stop-Work Orders, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers' compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondents are gas station/convenience stores located in South Florida. Northlake was created by Nazma Akter on May 6, 2014. MB was created by Ms. Akter on March 23, 2010. Congress Valero was created by Muhammad Saadat on July 21, 2011. Hena was created by Ms. Akter and Abu Ahsan on December 14, 2011. Hayma was created by Ms. Akter on December 14, 2011. Blue Heron was created by Ms. Akter on August 4, 2009. At all times relevant hereto, Respondents were duly-licensed to conduct business in the state of Florida. On February 2, 2015, the Department's Compliance Investigator Robert Feehrer, began a workers' compensation compliance investigation of Gardenia, LLC. Investigator Feehrer called the number listed for Gardenia, LLC, and was provided with a corporate office address. On February 10, 2015, upon arrival at Gardenia, LLC's, corporate office located at 165 US Highway 1, North Palm Beach, Florida, 33408, Investigator Feehrer spoke with Operations Manager Mohammad Hossain. Mr. Hossain stated that Gardenia, LLC, was a paper corporation and existed only for the purpose of paying unemployment taxes on the "six stores." Mr. Hossain went on to provide Investigator Feehrer with a list of Respondents and names of the employees that worked at each store. As an employee of Gardenia, LLC, and Respondents, Mr. Hossain's statements are party opponent admissions and bind Respondents. Lee v. Dep't of Health & Rehab. Servs., 698 So. 2d 1194, 1200 (Fla. 1997). With Mr. Hossain's statements and the list of Respondents' employees, Investigator Feehrer then consulted the Division of Corporations website, www.sunbiz.org, and confirmed that Respondents were current, active Florida companies. Investigator Feehrer then consulted the Department's Coverage and Compliance Automated System ("CCAS") for proof of workers' compensation coverage and exemptions associated with Respondents. Investigator Feehrer's CCAS search revealed that Respondents had no workers' compensation policies and no exemptions. On February 24, 2015, Investigator Feehrer conducted site visits at each of the six stores. Ms. Akter and Mr. Hossain accompanied Investigator Feehrer during these site visits. At all times material hereto, Ms. Akter was a corporate officer or managing member of each of the six Respondents. Muhammed Saadat and Abu Ahsan were corporate officers or managing members of Congress Valero, Hena, and Blue Heron. Kazi Ahamed was a corporate officer or managing member of Congress Valero and Hayma. Kazi Haider and Mohammed Haque were managing members of Hayma. All received compensation from the companies with which they were involved. Although Investigator Feehrer only personally observed one employee working at each location during his site visits, the payroll records revealed that at least four employees (including corporate officers or managing members without exemptions) received compensation for work at each location during the relevant period. Investigator Feehrer required additional information to determine compliance, and with Respondents' permission, contacted Respondents' accountant. Investigator Feehrer met with the accountant at least two times to obtain relevant information prior to March 30, 2015. Upon Ms. Akter's authorization, the accountant provided tax returns and payroll information for Respondents' employees. Information from Ms. Akter and Mr. Hossain also confirmed the specific employees at each of the six stores during the period of March 30, 2013, through March 30, 2015. On March 30, 2015, based on his findings, Investigator Feehrer served six Stop-Work Orders and Orders of Penalty Assessment. The Stop-Work Orders were personally served on Ms. Akter. Mr. Hossain was present as well and confirmed the lists of employees for each of the six stores were accurate. In April 2015, the Department assigned Penalty Auditor Christopher Richardson to calculate the six penalties assessed against Respondents. Respondent provided tax returns for the audit period and payroll transaction details were provided, as well as general ledgers/breakdowns, noting the employees for each Respondent company. Based on Investigator Feehrer's observations of the six stores on February 24, 2015, Auditor Richardson used the classification code 8061 listed in the Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021(1). Classification code 8061 applies to employees of gasoline stations with convenience stores. Classification codes are four-digit codes assigned to various occupations by the National Council on Compensation Insurance to assist in the calculation of workers' compensation insurance premiums. In the penalty assessment, Auditor Richardson applied the corresponding approved manual rate for classification code 8061 for the related periods of non-compliance. The corresponding approved manual rate was correctly utilized using the methodology specified in section 440.107(7)(d)1. and rule 69L-6.027 to determine the final penalties. The Department correctly determined Respondents' gross payroll pursuant to the procedures required by section 440.107(7)(d) and rule 69L-6.027. On January 14, 2016, the Department served the six Amended Orders of Penalty Assessment on Respondents, assessing penalties of $1,367.06 for Northlake, $9,687.00 for MB, $12,651.42 for Congress Valero, $18,508.88 for Hena, $7,257.48 for Hayma, and $4,031.60 for Blue Heron. The Department has demonstrated by clear and convincing evidence that Respondents were engaged in the gasoline station, self-service/convenience store industry in Florida during the periods of noncompliance; that Respondents failed to secure the payment of workers' compensation for their employees, as required by Florida's Workers' Compensation Law; and that the Department correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a consolidated final order upholding the Stop-Work Orders and the Amended Orders of Penalty Assessment in the amounts of $1,367.06 for Northlake Mobile Enterprises, Inc.; $9,687.00 for MB Food and Beverage, Inc.; $12,651.42 for Congress Valero, Inc.; $18,508.88 for Hena Enterprises, Inc.; $7,257.48 for Hayma Enterprises, Inc.; and $4,031.60 for Blue Heron BP, Inc. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016.
The Issue Whether Petitioner's application for a certificate of need should be deemed withdrawn from further review and consideration for the reasons stated in the Agency for Health Care Administration's November 12, 1997, letter to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a division of Jewish Family Service of Broward County, which operates under the umbrella of the Jewish Federation of Broward County. On August 1, 1997, Petitioner submitted to the Agency a letter indicating its intent to seek a certificate of need authorizing the establishment of a Medicare-certified home health agency in Broward County. By letter dated August 27, 1997, the Agency advised Petitioner that Petitioner's letter of intent "had been accepted . . . for submission of an application in the upcoming review cycle" and that the application filing deadline was September 24, 1997. In its letter, the Agency provided the following additional advisement: The application filing fee is $5,000.00 plus 0.015 times the total project cost up to a maximum fee of $22,000.00. The minimum fee for projects with no capital expenditure is now $5,000.00. The non-refundable filing fee should be submitted with the application on or before the application due date listed above [September 24, 1997]. Petitioner filed its application for a certificate of need on September 24, 1997. The application indicated that the "project cost subject to fee" (Schedule 1, Line 51, which excludes the base application filing fee of $5,000.00) would be $44,150.00. Accompanying Petitioner's application, among other things, was a check in the amount of $5,000.00 and an audited financial statement of Jewish Family Service of Broward County covering the fiscal year ending September 30, 1995. No other audited financial statements were provided. By letter dated October 9, 1997 (Agency's omissions letter), the Agency advised Petitioner that Petitioner had submitted neither the "appropriate [filing] fee," nor the audited financial statement(s), "needed to implement formal review" of Petitioner's application, and it requested that Petitioner cure these deficiencies by providing the appropriate fee and by furnishing "audited financial statements of the applicant's most recent complete fiscal year of operation," or, "[i]f the most recent fiscal year ended within 120 days prior to the application filing deadline and the audited financial statements [we]re not yet available, [of] the prior fiscal year." In its omissions letter, the Agency issued Petitioner the following warning: Section 408.039, (1992 Supplement to Florida Statutes), requires that you file a response to the attached omissions with the agency and the appropriate health council by November 10, 1997. Failure to file your written response to this office and the appropriate local health council by 5 p.m. on that date will result in your application being deemed withdrawn from consideration, pursuant to Rule 59C-1.010, Florida Administrative Code. Petitioner received the Agency's omissions letter on October 14, 1997. Petitioner submitted its response to the Agency's omissions letter on November 10, 1997. It provided the Agency with a check in the amount of $425.00 and financial statements and reports (including a profit and loss statement covering the period starting October 1996 and ending September 1997) that were not audited. In a cover letter, Petitioner explained that, "[a]t this time, there is no complete financial audit for Jewish Family Home Care, since its first fiscal year just ended on September 30, 1997." On November 12, 1997, the Agency sent a letter to Petitioner advising that, "[b]ecause of [Petitioner's] failure to submit the correct CON filing fee in accordance with Chapter 59C- 1.008(3)(b)2., Florida Administrative Code and an audited financial statement of the applicant in accordance with Chapter 59C-1.008(5)(c)1.-3., Florida Administrative Code, and Section 408.037(1)(c), Florida Statutes, [Petitioner's] application [would be] deemed incomplete and withdrawn from further review." Petitioner thereafter requested an administrative hearing on the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order taking the action proposed in its November 12, 1997, letter to Petitioner. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998.
The Issue The issues presented concern the request by Petitioner for a refund of $700 paid to the Florida Public Service Commission as a filing fee related to an application for a rate increase of its passenger fares.
Findings Of Fact The facts presented are based upon a stipulation offered by the parties. Those facts were accepted for purposes of this Recommended Order by the interlocutory Order of November 21, 1983. In keeping with that action and pursuant to the parties' stipulation of facts, the following facts are found: (See Stipulation of Facts and all exhibits attached to this Recommended Order.)
