The Issue The ultimate issue for determination is whether Respondent discriminated against Petitioner on the basis of her age by failing to provide equal raises in October 1994 and equal termination benefits in August 1995, in violation of Section 760.10(1), Florida Statutes (1997). (All statutory references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner did not appear at the administrative hearing and did not submit any evidence. Respondent seeks attorney fees and costs incurred as a result of Petitioner's failure to comply with the Discovery Order. It is uncontroverted that Petitioner is a female born on November 17, 1929, and a member of a protected class. Respondent employed Petitioner up to her dismissal on August 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on or about August 31, 1995. The Commission's date stamp on the Charge of Discrimination is legible only for the month and year of filing. August 31, 1995, is the deemed date. Petitioner's Charge of Discrimination contains two allegations of age discrimination. First, Petitioner alleges that Respondent discriminated against Petitioner on August 1, 1995, by terminating Petitioner's employment without the same severance pay that Respondent paid to one of Petitioner's co- workers. Second, Petitioner alleges that in October 1994 Respondent failed to give Petitioner the same raise as Respondent gave Petitioner's co-workers in the same position, i.e., a laboratory technician. Time Limits The Charge of Discrimination was timely filed in accordance with the requirements of Section 760.11(1). The filing date of August 31, 1995, fell within 365 days of the earliest alleged discrimination on October 1, 1994. Section 760.11(3) authorized the Commission to issue a determination of reasonable cause within 180 days of August 31, 1995, when the Charge of Discrimination was filed. Counting September 1, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized Commission to determine reasonable cause no later than February 27, 1996. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of February 27, 1996. Counting February 28, 1996, as the first day of the 35-day period and assuming for the benefit of Petitioner that February 1996 had only 28 days, Section 760.11(7) required Petitioner to file a request for hearing no later than April 3, 1996. Petitioner did not timely file her request for administrative hearing. Petitioner first requested an administrative hearing in the Petition for Relief filed on September 10, 1997. Petitioner filed her request for hearing approximately 525 days late and 560 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. Fees and Costs The Commission referred the request for hearing in the Petition for Relief to DOAH on October 16, 1997. On November 3, 1997, Respondent filed its Answer and Affirmative Defenses and its Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and Alternative Motion for More Definite Statement with Incorporated Memorandum of Law in Support Thereof (respectively, the "Motion to Dismiss" and "Motion for More Definite Statement"). On October 17, 1997, Respondent served Petitioner with copies of the Motion to Dismiss and Motion for More Definite Statement by United States Mail. Petitioner did not file a response to the Motion to Dismiss and Motion for More Definite Statement within 12 days of the date of service, or anytime thereafter. On November 18, 1997, an Order to Show Cause required Petitioner to file no later than December 15, 1997, a written response stating why the relief requested by Respondent should not be granted. A Notice of Hearing issued on the same date scheduled the administrative hearing for February 9, 1998. On December 8, 1997, Petitioner filed her written response to the Order to Show Cause but did not serve a copy on Respondent. On December 30, 1997, a Notice of Ex Parte Communication provided Respondent with a copy of Petitioner's written response and reminded each party to serve the opposing party with copies of any documents filed with DOAH. On January 15, 1998, Respondent filed a renewed Motion to Dismiss and Motion for More Definite Statement and requested a continuance of the administrative hearing on the ground that Respondent had not received a copy of Petitioner's response to the Order to Show Cause until the first week in January. Petitioner did not respond to either of the renewed motions or to the motion for continuance. On February 3, 1998, the ALJ continued the hearing to a date to be agreed upon by the parties during a telephone hearing scheduled for February 9, 1998. The telephone hearing was scheduled to hear oral argument on Respondent's pending motions and as a case management conference. At the outset of the telephone conference conducted on February 9, 1998, Petitioner stated that she did not wish to proceed without counsel. Petitioner represented that she had been attempting to obtain counsel, without success, and requested additional time in which to obtain counsel. Attorney Robert Hosch, Petitioner's nephew, participated in the motion hearing on February 9, 1998, for the limited purpose of representing that he would assist Petitioner in obtaining counsel. The ALJ granted Petitioner's request for additional time; reserved ruling on Respondent's pending motions for disposition after hearing oral argument during a telephone conference rescheduled for March 2, 1998; instructed Petitioner to have her attorney file a notice of appearance no later than February 19, 1998, and a response to Respondent's renewed Motion to Dismiss and Motion for More Definite Statement no later than March 2, 1998. Pursuant to the agreement of the parties during the telephone conference, the ALJ scheduled the administrative hearing for April 28, 1998. On February 23, 1998, an Order Continuing and Rescheduling Formal Hearing memorialized the foregoing matters. On March 2, 1998, the parties and Mr. Hosch participated in another telephone conference concerning Respondent's Motion to Dismiss and Motion for More Definite Statement. Mr. Hosch stated that he did not represent Petitioner but was assisting her in obtaining counsel. Petitioner requested additional time in which to obtain counsel. The ALJ required Petitioner to file a more definite statement and a notice of appearance from her attorney, if any, no later than March 12, 1998. The ALJ instructed the parties and Mr. Hosch that failure to file a more definite statement and any notice of appearance on or before March 12, 1998, would result in dismissal of the proceeding. On March 6, 1998, an Order Granting Motion for More Definite Statement memorialized the rulings and instructions entered during the March 2 telephone conference. On March 13, 1998, Petitioner filed a one-page letter purporting to be a more definite statement. On March 16, 1998, the undersigned entered a Recommended Order of Dismissal. On April 5, 1999, the Commission entered an Order Remanding Case to Administrative Law Judge for Further Proceedings on the Merits (the "Remand"). In relevant part, the Remand concluded that the Recommended Order of Dismissal denied Petitioner her right to represent herself and that it was an abuse of discretion to do so. The Remand stated, in relevant part: An examination of the DOAH file discloses that Petitioner attempted to file a more definite statement by letter dated 3/11/98, and received by DOAH 3/13/98. It is not known why the Judge does not refer to this letter in his Order. Perhaps it was ignored because it was received one day late. If so, this only strengthens the Commission's finding that the Petitioner was deprived of an essential due process requirement of Florida law, and the Judge abused his discretion. . . . it is necessary that there be a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard of the order. Petitioner's argument . . . is probably strong enough by itself to remand the Recommended Order, at least on the issue of willful or deliberate default. Remand at fourth unnumbered page. On April 19, 1999, an Order Reopening File required the parties to file a status report no later than May 17, 1999. The Order expressly stated that failure to timely file a status report would result in the dismissal of the case. Neither party timely filed a status report. On May 20, 1999, Respondent filed Respondent's Status Report requesting rulings on the original and renewed Motion to Dismiss and Motion for More Definite Statement and requesting the administrative hearing to be scheduled after January 1, 2000. Petitioner never filed a status report and did not respond to Respondent's request for rulings on the pending motions. On June 9, 1999, the ALJ entered an Order Denying Dismissal. The Order denied Respondent's original and renewed Motion to Dismiss and Motion for More Definite Statement. On the same date, a Notice of Hearing scheduled the administrative Hearing for September 28 and 29, 1999, and a Prehearing Order required the parties to comply with several requirements incorporated herein by this reference. On June 25, 1999, Respondent filed Respondent's Motion for Continuance of the hearing scheduled for September 28-29, 1999, on the ground that counsel for Respondent was scheduled for a four-week trial in circuit court beginning September 21, 1999. Petitioner never responded to the Motion for Continuance. An order dated July 13, 1999, rescheduled the administrative hearing for January 20 and 21, 2000. On November 16, 1999, Respondent served Petitioner with Respondent's First Set of Interrogatories and Respondent's First Request for Production of Documents. Petitioner neither objected to nor answered either discovery request. On November 30, 1999, Respondent served Petitioner with a Notice of Taking Deposition Duces Tecum on December 16, 1999. On December 1, 1999, Petitioner filed a letter requesting a continuance of the administrative hearing and an extension of time to respond to discovery and to attend the deposition. In relevant part, the letter stated that Petitioner continues: . . . to have difficulty finding counsel who will assist me on a contingency fee basis . . . . At this time, it would be impossible for me to pay an attorney for his or her time in assisting me. For the same reason, I am requesting that each of the parties' discovery efforts be halted for a short period of time, in order that I might find counsel to help me with my responses and to attend my deposition. I do understand that the Respondent has a right to gather information about my claim and I plan to fully cooperate with those efforts. However, I need the assistance of an attorney in preparing my case and representing me at deposition and at the hearing. I am diligently trying to secure counsel and I only seek a reasonable continuance of the hearing and of pending discovery. . . . Please allow at least a few extra months before the hearing date and allow me at least an additional month to respond to the Respondent's discovery requests and to attend my deposition, which is currently scheduled for mid-December, 1999. . . . On December 10, 1999, Respondent filed Respondent's Objection to Petitioner's Request for Continuance and Rescheduling of Formal Hearing and Request for Stay of Discovery. On December 14, 1999, Respondent filed Respondent's Limited Withdrawal of Objection to Continuance and Amended Response to Request for Continuance. Respondent agreed to a continuance of the hearing for one month but objected to any extension of the time for responding to discovery requests or for taking the deposition. An order dated December 17, 1999, rescheduled the administrative hearing for February 28 and 29, 2000, and denied Petitioner's request to stay discovery while she sought counsel. Counsel for Respondent made reasonable efforts to conduct discovery at Petitioner's convenience. Subsequent to November 30, 1999, when Respondent's counsel scheduled Petitioner's deposition for December 16, 1999, Petitioner contacted Respondent's counsel to reschedule the December 16 deposition because Petitioner was recovering from a cold. Respondent's counsel rescheduled the deposition for January 4, 2000, and specifically obtained Petitioner's approval of the January 4th-deposition date. During the week of December 27, 1999, Petitioner contacted Respondent's counsel and represented that Petitioner was scheduled to have surgery to remove cancer from Petitioner's mouth on January 3, 2000. Petitioner stated that she would not be able to talk for several weeks and would not be able to appear at the January 4th deposition. Respondent's counsel agreed to reschedule the deposition if Petitioner would provide written confirmation of the scheduled surgery from Petitioner's physician. Petitioner never provided the written confirmation. Respondent's counsel re-noticed Petitioner's deposition for January 17, 2000. Respondent's counsel obtained Petitioner's specific approval of the new deposition date before scheduling the deposition. Petitioner failed to appear for her deposition on January 17, 2000, and Respondent's counsel rescheduled the deposition for February 2, 2000. Respondent's counsel made several requests by telephone to obtain Petitioner's answers to interrogatories and Petitioner's response to the request to produce. Both discovery requests had been served on November 16, 1999. Petitioner never objected to or answered Respondent's interrogatories and never objected to or produced the requested documents. On January 10, 2000, Respondent's counsel filed a Motion to Compel and Motion for Sanctions; and Respondent's Motion to Compel Appearance at Deposition and Responses to Discovery and Motion for Sanctions. The Discovery Order (dated January 28, 2000) reserved ruling on the request for sanctions until an evidentiary hearing could be conducted during the administrative hearing scheduled for February 28, 1999. However, the Discovery Order granted the request to compel Petitioner's appearance at the deposition scheduled for February 2, 2000; required Petitioner to bring to the deposition her answers to interrogatories and any documents in response to Respondent's request to produce; and required Petitioner to file her Prehearing Statement in accordance with the requirements of the Prehearing Order entered on June 9, 1999. On January 28, 1999, the administrative assistant for the ALJ telephoned Petitioner and read paragraphs 1-7 of the Discovery Order. On the same date, Respondent's counsel caused a copy of the Discovery Order to be hand-delivered to Petitioner's residence. Petitioner was not home, and the courier posted the Discovery Order on the front door of Petitioner's residence. On January 29, 2000, Respondent's counsel personally hand-delivered a copy of the Discovery Order to Petitioner at Petitioner's residence and informed Petitioner of the Order's contents. On February 2, 2000, Petitioner failed to appear for her deposition. Petitioner never filed her answers to interrogatories, never filed the documents sought in Respondent's request to produce, and never filed a Prehearing Statement. Respondent's counsel telephoned Petitioner to confirm that Petitioner would be attending a prehearing conference that had been previously scheduled in accordance with the requirements of the Prehearing Order entered on June 9, 1999. Petitioner stated that she would not attend the prehearing conference. When Respondent's counsel asked why Petitioner would not attend the prehearing conference, Petitioner hung up without explanation. When counsel for Respondent made additional attempts to coordinate a prehearing conference, Petitioner refused to speak to counsel for Respondent. Petitioner's refusal to appear at deposition, answer interrogatories, produce documents, and participate in a prehearing conference individually and collectively prejudiced Respondent's ability to prepare a defense. Petitioner's refusal denied Respondent relevant and material information including the identity of Petitioner's witnesses and exhibits as well as Petitioner's current employment and earnings. Petitioner's refusal deprived Respondent's counsel of the ability to fully perform her duties and responsibilities to her client. Respondent incurred attorney's fees and costs as a result of Petitioner's refusal to appear at deposition, answer interrogatories, and produce documents. Respondent incurred court reporter costs of $169.15 as a result of Petitioner's refusal to appear at any of her depositions. Respondent incurred attorney's fees of $499.75 as a result of Petitioner's refusal to appear at her first deposition. Respondent incurred attorney's fees of $1,870.50 as a result of Petitioner's failure to appear at her second deposition, answer interrogatories, and produce documents; and as a result of various motions filed to obtain Petitioner's attendance at deposition and Petitioner's responses to discovery requests. Petitioner willfully and deliberately disregarded the requirements of the Discovery Order. In relevant part, paragraph 6 in the Discovery Order stated: In the absence of competent and substantial evidence of good cause submitted by Petitioner, the failure of Petitioner to timely comply with the requirements of this Order shall be "equivalent to willfulness or deliberate disregard of the order [quoting from the Remand]." Upon Respondent's timely motion and showing of good cause for imposing sanctions, such failure by Petitioner shall subject Petitioner to the imposition of appropriate sanctions including the assessment of fees and costs, the preclusion of evidence, and the dismissal of this proceeding. Petitioner had adequate notice of the terms of the Discovery Order and the opportunity to show good cause for her failure to comply with the Discovery Order. On January 28, 2000, the administrative assistant for the ALJ read to Petitioner over the telephone the contents of paragraphs 1-7 of the Discovery Order. Petitioner received a copy of the Discovery Order on January 28 and 29, 2000. On January 29, 2000, Respondent's counsel explained the Discovery Order to Petitioner. Petitioner chose not to comply with the Discovery Order. Petitioner neither appeared at the administrative hearing to present evidence to prove the merits of her case nor appeared to present evidence to show why the sanctions requested by Respondent should not be granted. Monetary sanctions are appropriate in this case and commensurate with the offense. Dismissal and the preclusion of evidence are neither appropriate nor adequate sanctions because Petitioner did not appear at the administrative hearing and did not present any evidence. Respondent's counsel was required by law and the rules of ethics to make every reasonable effort to prepare an adequate defense of her client for presentation at the administrative hearing. Dismissal is not appropriate for other reasons. The Commission reversed a previous dismissal in this case and remanded the case in an effort to ensure Petitioner's right to represent herself. After the remand, Petitioner sought additional time to obtain counsel. Relevant orders allowed Petitioner additional time to obtain counsel; afforded Petitioner the right to represent herself during discovery, in accordance with the purpose of the Remand; and attempted to balance the competing interests of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as untimely filed; finding that Respondent did not discriminate against Petitioner; denying Petitioner's Charge of Discrimination and Petition for Relief; and imposing monetary sanctions against Petitioner in the aggregate amount of $2,539.40. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Janet M. Courtney, Esquire Lowndes, Drosdick, Doster, Kantor and Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Margaret H. Wilson 5532C Cinderlane Parkway Orlando, Florida 32808
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended at hearing, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a 46-year-old man who holds the following Florida insurance licenses: a 2-16 life agent license (with an original issue date of July 25, 1987); a 2-18 life and health agent license (with an original license date of July 25, 1987); and a 2-20 general lines property and casualty agent license (with an original issue date of October 2, 1986). At no time during the period that he has held these licenses has he ever been disciplined by the Department or its predecessor. For the past 20 years, Respondent has worked as an agent for State Farm. On or about November 3, 2006, a criminal information was filed against Respondent in Palm Beach County (Florida) Circuit Court Case No. 06-CF013354AMB. The information alleged that Respondent, "on or between September 22, 2006, and October 8, 2006, . . . did willfully, maliciously, and repeatedly follow, harass or cyberstalk AIMEE NADELHOFFER and did make a credible threat, with the intent to place AIMEE NADELHOFFER or AIMEE NADELHOFFER'S child, sibling, spouse, parent or dependent in reasonable fear of death or bodily injury, contrary to Florida Statute 784.048(3) [Florida Statutes]." Aimee Nadelhoffer, the person named as the alleged victim in the information, is Respondent's former wife. She and Respondent are the parents of a three-year-old child for whom Respondent is paying child support. On November 30, 2006, pursuant to a plea agreement, Respondent (who had no previous criminal record) pled guilty to the crime alleged in the criminal information filed against him. At the time he entered into the plea agreement, Respondent was in jail awaiting trial and concerned that he would "lose [his] State Farm agency" if he remained incarcerated until his trial was held. Adjudication of guilt was withheld,1 and Respondent was placed on probation for three years, with conditions that included: not "associat[ing], communicat[ing], or hav[ing] any contact [except for contact by e-mail in reference to child custody issues] with [the] victim," Aimee Nadelhoffer, who had suffered substantial emotional distress as a result of Respondent's admitted2 criminal wrongdoing,3 nor "com[ing] within 200 f[eet]t of her residence or place of employment"; undergoing a "psychological evaluation" and completing any "recommended treatment"; and submitting to random drug testing at his own expense. It was furthered ordered that Respondent could "request early termination of probation after 2 years if [he] successfully complete[d] all conditions and [there were] no violations." In computing Respondent's "lowest permissible sentence" pursuant to Section 921.0024, Florida Statutes,4 the sentencing judge assessed no additional points in any of the following categories set forth on the Criminal Punishment Code Worksheet: "additional offenses," "victim injury," "prior record," "legal status violation," "community sanction violation," "firearm/semi-automatic or machine gun," "prior serious felony," and "enhancements." For his commission of the "primary offense" he was assessed 36 points.5 On September 19, 2007, in accordance with a request made by Aimee Nadelhoffer, the conditions of Respondent's probation were "modified to provide [that Respondent] may have 'No Violent Contact' [as opposed to no contact of any kind] with Aimee Nadelhoffer." Respondent presently has contact with Aimee Nadelhoffer, dealing with her cooperatively concerning "issues associated with [child] visitation and the like." Since the entry of his guilty plea, Respondent has not spent any time in jail. Respondent is still on probation. No proceedings have been brought seeking to revoke his probation. In November 2006, two other criminal informations were filed against Respondent. One was filed in Palm Beach County Court on November 7, 2006, and charged, in its two counts, that Respondent, on October 19, 2006, did: "willfully, after having been served with an Injunction for Protection Against Domestic Violence issued pursuant to section 714.30 . . . , knowingly and intentionally come within 100 feet of AIMEE NADELHOFFER's motor vehicle, contrary to Florida Statute 741.31(4)(a)6." (Count 1); and "leav[e] the scene of a crash involving damage, in violation of Section 316.061, Florida Statutes" (Count 2). The other criminal information was filed in Palm Beach County Court on November 17, 2006, and charged Respondent with two counts of violating an injunction for protection (of Aimee Nadelhoffer) against domestic violence, in violation of Section 741.31(4)(a)5., Florida Statutes.6 After the Department learned of Respondent's guilty plea in Palm Beach County (Florida) Circuit Court Case No. 06- CF013354AMB, it filed the two-count Administrative Complaint against Respondent described in the Preliminary Statement of this Recommended Order. At Respondent's request, the matter was subsequently referred to DOAH for hearing. During the discovery phase of the proceeding, Respondent, through his attorney, took the deposition of Kathy Spencer, whom the Department had designated under Fla. R. Civ. P. 1.310 as its representative for purposes of "explain[ing] the Department's decision as to what disciplinary action should be imposed on [Respondent] for the charges set forth in the Administrative Complaint [in this case]." In her deposition testimony, Ms. Spencer clarified what the Department had stated in the Administrative Complaint regarding the disciplinary action it intended to take against Respondent. She testified that the Department was seeking to impose a three-month suspension for the violations alleged in Count I and an additional three-month suspension for the wrongdoing alleged in Count II. She further testified that, with respect to Count I, it was the Department's position that the crime to which Respondent had pled guilty in Palm Beach County (Florida) Circuit Court Case No. 06-CF013354AMB was a "felony involving moral turpitude."7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order finding Respondent guilty of the violations alleged in Count I of the Administrative Complaint and suspending his licenses for three months for committing these violations. DONE AND ENTERED this 4th day of February, 2008, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2008.
The Issue The issues in this proceeding are whether the petition for administrative hearing is barred by Sections 373.427(2)(c) and 120.569(2)(c), Florida Statutes (2000), or must be accepted by the agency pursuant to the judicial doctrine of equitable tolling. (All chapter and section references are to Florida Statutes (2000).)
Findings Of Fact In January of 2000, Whitley applied to DEP for permits to repair hurricane damage to a marina facility (the "Whitley Marina"). The Whitley Marina is located within sovereign submerged lands in Brevard County on the west side of the Indian River in Cocoa, Florida. On July 24, 2000, DEP issued the Notice of Intent from DEP's Central District office in Orlando, Florida. The permit number is 05-126125-002. The Notice of Intent expressly provided that petitions for an administrative hearing must be filed within 14 days of receipt of the Notice of Intent. Petitioner received the Notice of Intent on July 26, 2000. Counting July 27, 2000, as the first day of the 14-day time limit prescribed in the Notice of Intent, the Notice of Intent required Petitioner to file the Petition no later than August 9, 2000. Petitioner filed the Petition on August 14, 2000, which was 19 days after Petitioner received the Notice of Intent and five days after the expiration of the 14-day time limit prescribed in the Notice of Intent. The 14-day time limit in the Notice of Intent was based on the 14-day time limit prescribed in Section 373.427(2)(c). Unlike the Notice of Intent, however, Section 373.427(2)(c) does not state that the 14-day time limit begins to run on the date that the Notice of Intent is received. Rather, Section 373.427(2)(c) provides, in relevant part: Any petition for an administrative hearing pursuant to ss. 120.569 and 120.57 must be filed within 14 days of the notice of consolidated intent to grant or deny. (emphasis supplied) The literal terms of Section 373.427(2)(c) required the Petition to be filed within 14 days of the Notice of Intent issued on July 24, 2000. Counting July 25, 2000, as the first day of the 14-day time limit prescribed in Section 73.427(2)(c), Section 373.427(2)(c) required the Petition to be filed no later than August 7, 2000. Petitioner filed the Petition August 14, 2000. August 14, 2000, was 21 days after the date of the Notice of Intent on July 24, 2000, and seven days after the expiration of the 14-day time limit. The Notice of Intent also incorporated by reference Florida Administrative Code Rules 28-106.111(2) and 62- 110.106(3)(a) and (4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Apart from the issue discussed in paragraphs 5 and 6, the two rules referred to in the Notice of Intent do not prescribe time limits that modify, enlarge, or contravene the 14-day time limit prescribed in the Notice of Intent and Section 373.427. Rule 28-106.111(2), in relevant part, provides: Unless otherwise provided by law, persons seeking a hearing on an agency decision . . . shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision. (emphasis supplied) The 21-day time limit prescribed in Rule 28-106.111(2) is expressly limited to requests for an administrative hearing for which a time limit is not "otherwise provided by law." The time limit applicable to the Petition is otherwise provided by law in Section 373.427(2)(c) as 14 days rather than the 21 days prescribed in Rule 28-106.111(2). Rule 28-106.111(2) makes the 21-day time limit expressly inapplicable to the Petition filed in this proceeding, and there is no conflict between the 21-day time limit in the Rule and the 14-day statutory time limit in Section 373.427(2)(c). The Notice of Intent also referred to Rule 62- 110.106(3)(a). Rule 62-110.l06(3)(a) prescribes four different time limits for petitions to contest four different types of agency action. Subparagraphs 1-3 in the rule pertain, respectively, to permits governed by Chapter 403, hazardous waste facility permits, and notices of violations. None of the three types of agency action governed by subparagraphs 1-3 are proposed in this proceeding. Therefore, the time limits in subparagraphs 1-3 are inapplicable to the Petition. Subparagraph 4 of Rule 62-110.106(3)(a) prescribes a 21-day time limit for filing petitions to challenge agency action for permits "under statutes other than . . . section 373.427." (emphasis supplied) Like Rule 28-106.111(2), Rule 62-110.106(3) makes its 21-day time limit expressly inapplicable to the Petition because the Petition contests a proposed permit that is governed by Section 373.427. Notwithstanding the 14-day time limit prescribed in Section 373.427(2)(c) and the express inapplicability of the 21- day time limits in Rules 28-106.111(2) and 62-110.106(3)(a)4, the respective attorneys for Petitioner and DEP incorrectly concluded that Petitioner had 21 days to file the Petition. On July 31, 2000, attorneys in DEP's Office of General Counsel received by facsimile a letter from a staff attorney for Petitioner. In relevant part, the letter stated: Page 6 of the . . . [Notice of Intent] indicates that "in accordance with rules 28- 106.111(2) and 62-10.106(3)(a)(4), petitions for an administrative hearing must be filed within 14 days of receipt of this written notice." I have reviewed each of the rules cited, and each provides a period of 21 days within which to file a petition requesting an administrative hearing. Please confirm that pursuant to Fla. Admin. Code R.28-106(2) and 62-110.106(3)(a)(4), this organization has 21 days from receipt of the Department's notice of its intended action within which to file a petition requesting an administrative hearing. . . . (emphasis not supplied) The first paragraph in the letter dated July 31, 2000, was correct. It correctly quoted the Notice of Intent, and the Notice of Intent correctly stated that the applicable time limit for filing the Petition was 14 days. The Notice of Intent also correctly stated that the 14-day time limit was in accordance with Rules 28-106.111(2) and 62-110.106(3)(a)4 because the 21- day time limits prescribed in the two rules do not apply to permits for which time limits are otherwise provided by law in Section 373.427(2)(c). The second paragraph in the letter from Petitioner was a mistake of law. The second paragraph incorrectly concluded as a matter of law that Rules 28-106.111(2) and 62-110.106(3)(a)4 prescribe 21-day time limits for permits governed by Section 373.427. Although the two rules each prescribe a 21-day time limit, the 21-day time limit in Rule 28-106.111(2) is expressly limited to permits for which a time limit is not otherwise provided by law, and the 21-day time limit in Rule 62- 110.106(3)(a) is expressly limited to permits other than those governed by Section 373.427. On August 1, 2000, the staff attorney for Petitioner received a facsimile from DEP that joined in the mistake of law. In a hand-written note, counsel for DEP stated in relevant part: Thank you for your fax/letter of July 31, 2000 regarding the Whitley permit. . . . Your reading of the rules is correct - the time to file a petition should have reflected 21 days, not 14. I have notified Central District staff, who will notify the Whitleys of this error. Thank you for calling this to our attention. (emphasis not supplied) DEP replicated the mistake of law originated by Petitioner. DEP's interpretation of its own statutes and rules was incorrect for reasons previously stated and not repeated here. Petitioner relied on its own mistake of law and that of DEP and filed the Petition within 21 days of the receipt of the Notice of Intent. However, Petitioner filed the Petition seven days after the expiration of the 14-day time limit prescribed in Section 373.427(2)(c) and five days after expiration of the 14-day time limit prescribed in the Notice of Intent. (Compare paragraphs 3 and 4 with paragraphs 5 and 6, supra.) Petitioner's facsimile to DEP on July 31, 2000, was not a request for hearing. The facsimile did not request an administrative hearing but merely inquired into the time for filing such a request. The facsimile on July 31, 2000, was not a petition for administrative hearing. Rule 62-110.106(3)(a) requires a petition for an administrative hearing to be in the form required by Rules 28-106.201 or 28-106.301. The facsimile on July 31, 2000, failed to satisfy the requirements of either rule. The Notice of Intent also referred to Rule 62- 110.106(4). That rule authorizes DEP to grant a request for extension of the 21-day time limit prescribed in the rule. The facsimile on July 31, 2000, did not request an extension of the 21-day time limit prescribed in Rule 62-110.106(3)(a). Even if the facsimile were construed as having the effect of a request for extension of the 14-day time limit prescribed in Section 373.427(2)(c), DEP had no authority to grant such a request. Rule 62-110.106(4) authorizes DEP to grant a request to extend the 21-day time limit in the rule but does not authorize DEP to grant a request to extend the 14-day statutory time limit in Section 373.427(2)(c). As a state agency, neither DEP nor DOAH can enlarge, modify, or contravene the specific provisions of a statute, including the provisions in Section 373.427(2)(c) that prescribe a 14-day time limit for filing the Petition. Nor can a state agency interpret Rule 62- 110.106(4) in a manner that enlarges, modifies, or contravenes the time limit in Section 373.427(2)(c). Sections 120.52(8)(c), 120.56, 120.57(1)(e), and 120.68(7)(d) and (e). The authority in Rule 62-110.106(4) to grant an extension of time is expressly limited in scope to a time limit that is prescribed by an order or rule of an agency or a time limit that is established in any notice given under such a rule. The 14-day time limit at issue in this case is prescribed by statute, rather than by an order or rule of DEP, and DEP issued the 14-day time limit in the Notice of Intent pursuant to the statutory authority in Section 373.427(2)(c) rather than the Rules that prescribe a 21-day time limit. Rule 28-106.111(3) authorizes DEP to grant a request to extend the 21-day time limit in Rule 28-106.111(2). Even if Rule 28-106.111(3) were deemed to authorize an extension of the 14-day time limit prescribed in Section 373.427(2)(c), the Notice of Intent referred to Rule 28-106.111(2) rather than to Rule 28-106.111(3). Moreover, the facsimile on July 31, 2000, failed to comply with the prerequisites in Rule 28-106.111(3) for an extension of time. The facsimile failed to satisfy the requirement in Rule 28-106.111(3) that a request for extension of time: . . . contain a certificate that the moving party has consulted with all other parties . . . concerning the extension and that the agency and any other parties agree to said extension. Petitioner did not consult with Whitley about an extension of time prior to sending the facsimile on July 31, 2000. Petitioner's noncompliance with the 14-day time limit in Section 373.427(2)(c) is not a minor infraction. Enforcement of the delay caused by Petitioner's noncompliance would have the effect of enlarging or modifying the 14-day statutory time limit by five to seven days, or approximately 36 to 50 percent. Enforcement of the delay caused by Petitioner's noncompliance with the 14-day time limit in Section 373.427(2)(c) would prejudice Whitley. It would effectively deny Whitley the right to a defense based on a statutory bar to untimely petitions that the legislature authorized in Section 373.427(2)(c). See also Section 120.569(2)(c)(requiring dismissal of untimely petitions) and relevant discussion in paragraphs 43-48, infra. Whitley did not mislead or lull Petitioner into noncompliance with the 14-day statutory time limit in Section 373.427(2)(c). DEP misled or lulled Petitioner into noncompliance. DEP is a nominal, or facilitating, party in this proceeding rather than an adversarial party with a stake in the outcome of the proceeding. Petitioner and Whitley are the adversarial parties in this proceeding whose substantial interests will be affected by the outcome of the proceeding. Petitioner's adversary in this proceeding did not mislead or lull Petitioner into noncompliance with the 14-day time limit prescribed in Section 373.427(2)(c). The remaining Findings of Fact are based solely on the factual stipulations between the parties. Whitley and DEP had actual knowledge that Petitioner intended to request an administrative hearing to challenge the Notice of Intent. Whitley knew in June of 2000 that Petitioner opposed the proposed permit. DEP knew of Petitioner's intent to request an administrative hearing when DEP received the facsimile from Petitioner on July 31, 2000. The facsimile from Petitioner on July 31, 2000, and the response from DEP on August 1, 2000, were not forwarded to DOAH and were not part of the record before the ALJ when the ALJ issued the original Recommended Order of Dismissal. However, both documents were part of the record when DEP considered the Recommended Order of Dismissal and issued the remand. Prior to referring the matter to DOAH, DEP determined that the matters contained in the facsimile and response from DEP were sufficient to initiate a proceeding conducted pursuant to Sections 120.569 and 120.57(1). No trick, deception, or deceptive practice was utilized to prevent Petitioner from responding to the Motion to Dismiss that Whitley filed after DEP referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Petition for noncompliance with the 14-day time limit in Section 373.427(2)(c) and for noncompliance with the requirement for a timely petition in Section 120.569(2)(c). DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 298-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2001. COPIES FURNISHED: M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road, Suite 500 Longwood, Florida 32779 William E. "Ted" Guy, Esquire John S. Yudin, Esquire Guy and Yudin, P.A. 55 East Ocean Boulevard Stuart, Florida 34995-3386 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Pursuant to the order of the First District Court of Appeal dated October 18, 2005, the issue before the Division of Administrative Hearings is a determination of the amount of attorneys' fees and costs to be awarded for the administrative proceeding in Department of Health v. Anthony Glenn Rogers, M.D., DOAH Case No. 02-0080PL, and for the appellate proceeding styled Anthony Glenn Rogers, M.D. v. Department of Health, Case No. 1D04-1153 (Fla. 1st DCA Oct. 18, 2005).
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: The Department is the state agency charged with regulating the practice of medicine, and the Board of Medicine ("Board") within the Department is the entity responsible for entering final orders imposing disciplinary action for violations of the laws regulating the practice of medicine. See §§ 455.225 and 458.331(2), Fla. Stat. On January 4, 2002, the Department of Health filed an Administrative Complaint charging Dr. Rogers with violations of Section 458.331(1)(m), (q), and (t), Florida Statutes (1998).3 The matter was referred to the Division of Administrative Hearings, which assigned the matter DOAH Case No. 02-0080PL. The case was heard on May 7, 2002, by Administrative Law Judge Michael J. Parrish. Judge Parrish entered his Recommended Order on February 21, 2003, in which he found that the Department had failed to prove violations of Section 458.331(1)(q) and (t), Florida Statutes (1998), and recommended dismissal of those charges. Judge Parrish found that the Department had proven a violation of Section 458.331(1)(m), Florida Statutes (1998), failing to keep medical records as required by rule, and he recommended that Dr. Rogers be required to pay a $1,000.00 administrative fine and attend a Florida Medical Association record-keeping course as the penalty for the violation. The Board entered its Final Order on February 17, 2004, in which it adopted its own findings of fact and conclusions of law; found Dr. Rogers guilty of all three charges in the Administrative Complaint; and imposed a penalty on Dr. Rogers consisting of a $10,000 administrative fine, completing of a drug course sponsored by the University of South Florida, completion of a Florida Medical Association record-keeping course, and two years' probation, during which he was not permitted to practice medicine unless his practice was monitored quarterly by a physician approved by the Board. Dr. Rogers appealed the Board's Final Order to the First District Court of Appeal, challenging the Board's determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998). Dr. Rogers filed a motion for attorneys' fees and costs based on Section 120.595(5), Florida Statutes. In addition, Dr. Rogers filed a Motion for Stay of Final Order, which the Board opposed. The district court denied the motion for stay in an order entered April 2, 2004, and Dr. Rogers proceeded to comply with the terms of the two-year probationary period imposed by the Board, as well as fulfilling the other requirements set forth in the Board's Final Order of February 17, 2004. In an opinion issued on October 18, 2005, the First District Court of Appeal reversed the Board's Final Order with respect to its determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998), and remanded the matter to the Board for entry of a Final Order consistent with its opinion. The district court held in its opinion that the Board had erroneously re-weighed the evidence and had rejected findings of fact in the administrative law judge's Recommended Order that were supported by competent substantial evidence. The district court also entered on October 18, 2005, the order granting Dr. Rogers's motion for attorneys' fees and costs that is the subject of this proceeding. The district court's mandate issued on February 23, 2006, and, on April 21, 2006, the Board entered a Final Order on Remand adopting the findings of fact and conclusions of law in Judge Parrish's Recommended Order, finding that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), and imposing a $1,000.00 administrative fine on Dr. Rogers and requiring him to attend a medical record-keeping course. Based on the Amended Affidavit of C. William Berger filed August 24, 2006, the total number of hours Mr. Berger spent in representing Dr. Rogers in the administrative proceeding in DOAH Case No. 02-0080PL is 79.75, a total that the Department does not challenge. Mr. Berger's billing rate was $300.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid to Mr. Berger for his representation of Dr. Rogers through the administrative proceedings before the Division of Administrative Hearings was, therefore, $23,925.00. Dr. Rogers was ultimately found to have violated one count of the three-count Administrative Complaint filed against him by the Department, the count in which the Department alleged that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), by failing to keep adequate medical records related to the patient that was the subject of the charges against him. Mr. Berger did not record in his billing statements the amount of time he spent researching this charge, preparing for hearing on this charge, or addressing this charge in the Proposed Recommended Order he filed in 02-0080PL. It is reasonable that Mr. Berger spent 10 percent of the hours included in his billing statements preparing Dr. Rogers's defense to the charge that he failed to keep adequate medical records.4 Accordingly, Mr. Berger's attorney's fees will be reduced by 10 percent, or by $2,392.50, for a total of $21,532.50. In reaching the percentage by which Mr. Berger's fees should be reduced, consideration has been given to the amount of the fees in relationship to the failure to prevail on the medical-records violation, to the seriousness of the alleged violations on which Dr. Rogers prevailed before both the administrative law judge and on appeal,5 and the penalty ranges that the Board could impose for the violations with which Dr. Rogers was charged.6 Based on the Supplemental Affidavit of Lisa Shearer Nelson Regarding Attorneys' Fees and Costs filed September 5, 2006, Ms. Nelson claimed that she spent a total of 187.1 hours "from the issuance of the final order of the Board of Medicine through the appeal and remand and initial preparation of the petition for attorney's fees and costs." Ms. Nelson's billing statements reflect that she represented Dr. Rogers during the appellate proceedings before the First District Court of Appeal in Case No. 1D04-1153 and before the Board on remand from the district court. Ms. Nelson's billing rate was $250.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid by Dr. Rogers to Ms. Nelson for her representation was, therefore, $46,775.00. A review of the billing statements attached to Ms. Nelson's supplemental affidavit reveals that the final billing statement, dated June 9, 2006, was for "preparation of petition for fees and costs; preparation of affidavit re same." Dr. Rogers was billed for 1.9 hours in this billing statement, for a total of $475.00. Because the work done by Ms. Nelson reflected in this billing statement did not involve the appellate proceeding arising out of the Board's Final Order of February 17, 2004, the hours claimed by Ms. Nelson are reduced by 1.9 hours, for a total of 185.2 hours. Accordingly, Ms. Nelson's attorney's fees for her representation of Dr. Rogers on appeal total $46,300.00. The total costs identified in Mr. Berger's Amended Affidavit and in the billing statements attached to the Amended Affidavit is $4,462.55. This amount is reduced by $1,000.00 attributable to a retainer paid to a Dr. Spanos, who was initially retained as an expert witness but who ultimately did not testify on Dr. Rogers's behalf. The total allowable costs for the administrative proceeding, therefore, are $3,462.55. The total costs identified by Ms. Nelson in her Supplemental Affidavit and in the billing statements attached to the Supplemental Affidavit is $1,005.01. The total costs for both the administrative and the appellate proceedings are, therefore, $4,467.56. Dr. Rogers submitted an affidavit in which he claimed that he expended total costs of $154,807.23 in fulfilling the terms of the penalty assessed against him in the Board's Final Order of February 17, 2004, which was reversed by the district court.
Conclusions For Petitioner: C. William Berger, Esquire One Boca Place, Suite 337W 2255 Glades Road Boca Raton, Florida 33486 For Respondent: John E. Terrel, Esquire Michael D. Milnes, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact DOT and its predecessors have been charged by statute with the responsibilities to construct, operate, and maintain the Florida Turnpike, which is known as the Sunshine State Parkway. The Parkway is financed through a system of tolls which DOT charges users, through concessions that DOT receives from service facilities that are located on the Parkway, and from interest that DOT receives on deposits of toll revenues. Tolls are the primary source of revenue. Proposed rules 14-61.01 and 14-61.03 would increase the tolls charged by DOT for all Parkway traffic. The Petitioner is a political subdivision of the State of Florida. The Parkway traverses the north-south length of Broward County. Petitioner is a major user of the Parkway. Petitioner has the responsibility to operate and maintain a system of roadways within its boundaries. Changes in traffic patterns on the Parkway affect traffic patterns on other roads within the County. The parties have stipulated that the Petitioner would be substantially affected by the proposed rules. The first section of the Parkway, between Miami and Ft. Pierce, was completed in 1956. The second section, between Ft. Pierce and Wildwood, was completed in 1963. The toll schedule, which sets the rates charged different classes of vehicles for different movements along the Parkway, has not been amended since it was originally adopted and implemented in connection with the opening of the various segments. The original toll schedule was determined based upon local costs of obtaining property and estimated maintenance costs. The present toll structure includes some sharp fluctuations in the rate per mile charged for different movements. The average rate for the entire Parkway is approximately 1.8 cents per mile. For some movements along the Parkway the rate is as high as 4 cents per mile, while for others the rate is 1.6 cents per mile. Different rates are charged for passenger cars, and for trucks. The rate differentials are based upon the number of axles. Thus a five axle heavy truck pays a rate that is 2.5 times the rate charged passenger cars. During 1977, DOT began to consider a revision of the toll structure. Several legislators had expressed a desire that the toll rates be made uniform for all movements on the Parkway. Furthermore, the amount by which revenues obtained from operation of the Parkway exceed the cost of bond payments and operation and maintenance of the Parkway had been decreasing. It appeared at one time that there would be a shortfall of revenues for the 1977 year. There was also a projected shortfall of revenues for the 1978 year. The shortfalls did not occur. In fact there was a slight excess of revenues in 1977, and new projections based upon experience during the first six months of the year indicate that the same will be true for 1978. Excess revenues are, however, considerably less than had been typical in past years. DOT has developed and proposed what it calls a "minimum capital program". The program is labeled "minimum" because it contemplates making expenditures only for items that are needed, and not for items that are merely desirable. Revenue needs have been estimated through the calendar year 1991. The minimum capital program includes payments that will need to be made on revenue bonds; and the cost of major resurfacings, periodic maintenance, updating communications and tolls equipment, safety improvements, rehabilitation or replacement of concessionaire facilities, improving traffic handling facilities and miscellaneous engineering expenses. In addition to its own engineers, DOT employs two engineering firms to assist it in operating and maintaining the Parkway. A traffic engineer is employed to review the financial status of the Parkway on an annual basis, and a general engineer is employed to review the physical condition of the Parkway. Neither the traffic engineer nor the general engineer have mandated the minimum capital program. This program was developed by DOT's own employees The traffic engineer's projections for revenues that will be obtained from operation of the Parkway through 1991 reveal that inadequate revenues would be raised to finance the minimum capital program. DOT thus employed its traffic engineer on a special project basis to propose a toll schedule that would raise sufficient revenues, and that would eliminate the large variations in rate per mile charged for different movements on the Parkway. The traffic engineer proposed several alternative toll schedules. DOT is seeking to adopt the most conservative schedule proposed by the traffic engineer, through proposed rules 14-61.01 and 14-61.03. The traffic engineer sought to propose a schedule so that tolls for all movements on the Parkway would represent a fixed cost for collection of the toll, plus a fee based on usage in terms of mileage. It was decided that tolls would not be reduced for any movements, and that each movement would have an increase of at least five cents. There would be no toll increases greater than one hundred percent, and the smallest toll for any movement would be at least twenty cents. The tolls for all movements would be in five cent increments, so that change would not need to be distributed in pennies. Overall the toll structure set out in the proposed rules represents approximately a twelve percent increase, with per-mile rates being made more uniform. The ratio of the tolls charged to different vehicles has remained almost constant. Heavy trucks with five axles will now pay tolls that are approximately 2.6 times that charged for passenger vehicles. This slight increase in ratio reflects nothing more than a desire to maintain tolls in five cent increments. It does not reflect any desire to change the increments charged for different types of vehicles. Petitioner asserts that the minimum capital program is overstated, and that considerably less money will be needed for resurfacing and for safety improvements. DOT estimates that $110,000,000 will be needed for resurfacing on the Parkway between 1978 and 1991. This estimate is based upon a projection that resurfacing will be required every eight years, and will cost approximately $85,000 per mile to accomplish. The eight-year cycle is a planning tool utilized by DOT. It reflects the average life of pavement on interstate highways. The Parkway's history reflects that repavings are required less than every eight years. Portions of the first section of the Parkway did not need any resurfacing after the initial work for eleven years. With few exceptions, no new resurfacings were required after the first one, which was completed in 1968, until this year. Thus the first resurfacing has lasted from ten to fourteen years. Perhaps as a result of variances in materials, the experience on the second section of the turnpike has not been as good, but it does appear that a resurfacing will last for more than eight years. Despite this favorable history, there is room for considerable speculation on the part of engineers as to how long fly resurfacing will last. Eight years, while conservative, represents a fair estimate in view of the uncertainty. It was estimated by a witness called by the Petitioner that a resurfacing can be accomplished for approximately $40,000 per mile rather than the $85,000 estimated by the Respondent. The witness who made this estimate has not been involved in any resurfacings of this magnitude since 1968. The major reason for his smaller estimate is that he would use considerably less asphalt than proposed by the Respondent. Here again, there is room for variance in the views of engineer. The amount proposed by the Respondent, while again on the liberal side, appears to be reasonable, and based upon current estimates of costs on actual projects, with inflation being considered. As to safety improvements, Petitioner asserts that the improvements proposed by DOT are not essential. The minimum capital program includes proposals to add guard rails, to increase the strength of some existing guard rails, to improve lighting on the Parkway, and to increase the length of several approach lanes. The economic justification for the proposed safety improvements could be a subject for debate, but it does appear that the improvements offered by DOT are reasonable, and do not constitute as high an expenditure for safety as would be ideal. Projected revenues under the present toll schedule would not be adequate to finance the minimum capital program. The total deficit would amount to either $40,000,000 or $73,000,000 depending upon the accounting method utilized. Under the proposed toll schedule an additional $91,700,000 would be raised over the amount that would be raised from the existing toll schedule according to the traffic engineer's projections. There would thus be at least a $20,000,000 estimated total excess of revenues under the proposed schedule. This $20,000,000 must be considered from the perspective that it represents a thirteen-year projection in a project which will have an aggregate budget of approximately $361,000,000. Heavy trucks cause more wear on a highway surface than do passenger automobiles. The amount of increased wear is even greater than would be reflected by weight differentials. Trucks wear out a road surface at a rate of as much as twenty five times greater than automobiles. DOT made no effort to have the differential in tolls charged to trucks and automobiles reflect the amount of wear caused by each type of vehicle beyond the amount the present rate structure reflects such a differential. Neither did the Respondent make any effort to determine the extent to which toll increases could cause trucks to abandon the Parkway and to utilize other highways. The differential that exists in the present toll schedule was accepted by DOT and used for the purpose of developing a new schedule without any inquiry into whether a different ratio might better serve to raise revenue and to maintain the Parkway. The evidence does not reveal any logical basis for setting a ratio based upon that number of axles on the vehicle, but nonetheless DOT made no inquiry into the appropriateness of that ratio. The Economic Impact Statement prepared in support of the proposed rules was developed in June, 1977. The Statement was completed prior to June 16, 1978, the date that the proposed rules were noticed in the Florida Administrative Weekly. The Economic Impact Statement was submitted into evidence at the hearing. It is organized along the lines of Section 120.54(2), Florida Statutes (1977), with numbered paragraphs in which the data required by the statute is putatively set out. Although there was testimony from a competent and qualified expert witness to the effect that the Economic Impact Statement does not meet professionally acceptable methodology, it has not been established that the Statement is other than adequate to meet the requirements of the statute. The Petitioner's expert testified primarily that the Statement does not include a recitation of the data upon which the conclusions set out in the Statement are based. The expert would have preferred that the proposed rule be quoted in the Statement, and that all figures utilized in the Statement be fully explained. The expert did not find any specific fault with she methodology of obtaining data, with the data itself, or with the conclusions.
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual, 2004 Second Edition, is an invalid exercise of delegated legislative authority. PRELIMINARY STATEMNET On February 21, 2008, Petitioner filed a Petition for Formal Administrative Hearing with the Agency for Health Care Administration (AHCA). The petition requests a hearing on the determination issued by AHCA in a reimbursement dispute involving Petitioner under Section 440.13, Florida Statutes.1/ The petition also includes a "rule challenge" under Section 120.56, Florida Statutes, in which Petitioner alleges that Section 11B(3)2/ of the Florida Workers' Compensation Reimbursement Manual, 2004 Second Edition ("the 2004 Manual"), is an invalid exercise of delegated legislative authority. The "affected agencies" identified in the petition are AHCA and the Department of Financial Services (Department). The Department is identified because it promulgated Florida Administrative Code Rule 69L-7.501, which according to the petition, incorporates by reference the 2004 Manual. On February 27, 2008, AHCA referred the petition to the Division of Administrative Hearings (DOAH). The DOAH Clerk established two cases based upon the petition--DOAH Case No. 08-1058, which is the reimbursement dispute, and DOAH Case No. 08-1060RX, which is the rule challenge. AHCA is designated as the Respondent in the reimbursement dispute, and the Department is designated as the Respondent in the rule challenge. On February 28, 2008, the Department filed a motion to dismiss the rule challenge for lack of subject matter jurisdiction because the 2004 Manual is no longer adopted by reference in Florida Administrative Code Rule 69L-7.501. Petitioner did not file a response to the motion within the time allowed by Florida Administrative Code Rule 28-106.204(1). No hearing is necessary to rule on the jurisdictional issue raised in the motion.
Findings Of Fact The 2004 Manual is no longer adopted by reference in Florida Administrative Code Rule 69L-7.501 or any other rule. Florida Administrative Code Rule 69L-7.501(1) was amended, effective October 1, 2007, to incorporate the 2006 version of the Florida Workers' Compensation Reimbursement Manual. The amendment deleted the Rule's reference to the 2004 Manual. AHCA applied the 2004 Manual in the reimbursement dispute involving Petitioner, which is pending as DOAH Case No. 08-1058.
