Findings Of Fact The Florida Department of Insurance (Department) is responsible for regulation of insurance transactions in the State of Florida. In 1996, the United States Supreme Court held in Barnett Bank of Marion County, N. A. v. Nelson, 517 U.S. 25 (1996) that nationally chartered banks located in towns with populations of 5000 or less were authorized to own insurance agencies. In response, the 1996 Florida legislature revised Section 626.988, Florida Statutes (the "anti-affiliation" statute) to conform to the Court's ruling in the Barnett case The 1996 legislature also enacted Section 626.5715, Florida Statutes, informally identified as the "parity statute." Section 626.5715, Florida Statutes, provides as follows: The department shall adopt rules to assure the parity of regulation in this state of insurance transactions as between an insurance agency owned by or an agent associated with a federally chartered financial institution, an insurance agency owned by or an agent associated with a state- chartered financial institution, and an insurance agency owned by or an agent associated with an entity that is not a financial institution. Such rules shall be limited to assuring that no insurance agency or agent is subject to more stringent or less stringent regulation than another insurance agency or agent on the basis of the regulatory status of the entity that owns the agency or is associated with the agent. For the purposes of this section, a person is "associated with" another entity if the person is employed by, retained by, under contract to, or owned or controlled by the entity directly or indirectly. This section does not apply with respect to a financial institution that is prohibited from owning an insurance agency or that is prohibited from being associated with an insurance agent under state or federal law. (Emphasis supplied.) The 1996 legislature also amended to Chapter 120, Florida Statutes (the Administrative Procedures Act) to restrict agency authority to promulgate rules, so as to prohibit the adoption of rules which, although perhaps rationally related to the purpose of an implementing statute, were not specifically authorized by the legislature. In the summer of 1996, the Department began circulating a draft of rules intended to address issues related to the sale of insurance in financial institutions. Beginning in January 1997, the Department began the formal process of adopting rules intended to address the "parity" of insurance regulation between insurance agencies affiliated with financial institutions and agencies which are unaffiliated. The Petitioners challenged parts or all of the proposed rules as invalid exercises of delegated legislative authority. As set forth in the Final Order entered June 29, 1998, in the consolidated rule challenges, Proposed Rules 4-224.002, 4-224.004, 4-224.007, 4-224.012, 4-224.013 and 4-224.014, Florida Administrative Code, were determined to be invalid exercises of delegated legislative authority. Although the challenged rules were determined to be invalid exercises of delegated legislative authority for various reasons, all were determined to be outside the Department's specific statutory authority as set forth by the legislature. There was no appeal of the Final Order. Prior to the hearing on the fee issue, all parties signed and filed a Prehearing Stipulation. According to the Prehearing Stipulation, "[t]he Department disputes entitlement to fees as a matter of law. It does not dispute the reasonableness of the fees, as capped by statute. It disputes the reasonableness of the costs sought by Florida Bankers Association. " The applicable statute provides that "a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust." The Department asserts that the agency's actions in adopting the challenged rules were substantially justified and that special circumstances exist which make the award unjust. The greater weight of the evidence fails to support the assertion. The evidence establishes that, from the initiation of the rule drafting process, the issue of whether the Department had the authority to adopt the proposed rules was of concern to the parties in this case. In response to an early draft of the rule circulated by the Department, the Florida Bankers Association (FBA) in June 1996 asserted that the proposed rules were outside the Department's authority under the parity statute. The FBA continued to maintain this position throughout the rule-drafting process and the subsequent rule challenge cases. The Department was apparently also concerned about whether the agency had authority to adopt the rules. In response to a question raised by Department legal staff, a December 31, 1996, letter to the Department from an attorney at the Joint Administrative Procedures Committee on the issue of authority indicates that the Department's general authority to adopt rules was restricted by the 1996 APA amendment to Section 120.536(1), Florida Statutes, and that additional specific authority would be required to support the promulgation of rules. At the fee hearing, the Department conceded that the parity statute alone did not grant the agency with the specific authority to prescribe or proscribe specific acts or actions of an insurance agent. The Department asserted that the authority for the proposed rules was set forth by the combination of Section 626.988, Florida Statutes, under which pre-existing rules had been adopted, with the Department's previous legal actions related to insurance sales by agents affiliated with financial institutions, and the presumed effect of the parity statute on the Department's otherwise-existing authority. The evidence fails to establish that the Department's reliance on historical authority to promulgate rules and the authority provided under the parity statute was reasonable given legislative restrictions on agency rulemaking set forth in the 1996 legislature's amendments to the Administrative Procedures Act. There was no credible evidence presented at the rule challenge hearing or during the fee hearing which suggested that an emergency, either existing or potential, which required the Department to take immediate action to protect insurance consumers. There was no credible evidence presented at the rule challenge hearing or during the fee hearing that insurance consumers were threatened by an availability of insurance products in settings other than in insurance agencies. There are no special circumstances that make an award of fees and costs unjust. The Department apparently asserts that because the FBA participated in the rulemaking process, special circumstances exist which make an award of fees unjust. Although the FBA participated in the workshop process, the FBA consistently asserted, as stated earlier, that the proposed rules were outside the Department's authority under the parity statute. By letter of June 5, 1996, the FBA specifically filed written objections to the proposed rules, asserting that they were inconsistent with the APA amendments and the authority granted by the parity statute. Further, the FBA noted in the June letter and again in a letter of September 27, 1996, that the purpose and authority of the parity statute was met by a single proposed rule which, in essence, stated that the provisions of the Florida Insurance Code were applicable equally to all agents and agencies, regardless of ownership or affiliation. At the fee hearing, the Department acknowledged that the FBA had raised specific objections regarding the agency's lack of statutory authority during the rule process. The FBA consistently asserted during the rulemaking process that the proposed rules were outside the Department's authority under the parity statute. The FBA pursued the assertion throughout the rulemaking process and successfully challenged the rules on the same basis. There was no evidence presented during the rule challenge or the fee case suggesting that the FBA retreated from the objection at any point in the rulemaking process. According to the Prehearing Stipulation signed and filed by the parties, the disputed issues of fact are whether the expert witness fee paid to Dr. Michael White was reasonable and whether other costs sought to be recoverable are reasonable. The only specific challenge presented by the Department to costs is directed towards Dr. White's fees. The evidence establishes that under the circumstances of this matter, Dr. White's fee is reasonable. At the fee case hearing, the FBA presented the deposition testimony of William B. Graham, an attorney practicing in Tallahassee, Florida, in support of Dr. White's fees. Mr. Graham's testimony is accepted and credited as to the amount of Dr. White's fee and to the time required to prepare for and participate in this proceeding. Based on Mr. Graham's testimony, Dr. White's fee of $320 per hour is reasonable for an expert of Dr. White's credentials. There is no credible evidence to the contrary. According to the three dated invoices submitted to the FBA by Dr. White, Dr. White expended a total of 106 hours and five minutes in rule challenge-related activities on behalf of the FBA. Based on Mr. Graham's testimony, the time recorded by Dr. White of 106 hours and five minutes for his services is reasonable under the circumstances of the rule challenge. There is no credible evidence to the contrary. The total amount of time billed by Dr. White results in a fee of $33,946.66. The three invoices submitted by Dr. White also bill the FBA for expenses totaling $2,643.72. There is no credible evidence that the Dr. White's expense billings are unreasonable. The total amount of fees and expenses charged by Dr. White to the FBA is $36,590.38. The FBA paid to Dr. White the total amount reflected on his invoices. By comparison with the fees charged by its own expert, the Department asserts that Dr. White's fees are unreasonable. The fact that the Department paid its expert less than the FBA paid to its own does not establish that payments to Dr. White were unreasonable. The amount of the attorney's fees to which the successful parties are entitled is not at issue in this proceeding. According to the Prehearing Stipulation, the Department "while contesting entitlement to any award of fees . . . does not dispute that the fees sought, as capped by the statute, is reasonable for the efforts of all counsel in this proceeding." The FBA, by affidavit, identified attorney's fees totaling $145,683.01, and seeks an award of $15,000, the statutory limit. By stipulation of the parties, the FBA is entitled to an award of attorney's fees in the amount of $15,000. The FBA identified total costs of $40,537.53, including the fees and expenses paid to Dr. White. There is no evidence that the costs of $3,947.15 set forth in the attorney billing records (and unrelated to costs related to Dr. White) are unreasonable. Based on the foregoing, the FBA is entitled to receive a total of $55,537.53. The Community Bankers Association identified attorney's fees totaling $10,290.00, and costs of $806.23. By stipulation of the parties, the Community Bankers Association is entitled to an award of attorney's fees in the amount of $10,290.00. There is no evidence that the Community Bankers Association costs of $806.23 are unreasonable. Based on the foregoing, the Community Bankers Association is entitled to receive a total of $11,096.23. The Department asserts that, due to "untimeliness" of the Petitions for Fees filed in these cases, an award of fees in this case is unjust. There is no issue of timeliness to be addressed in this matter. The Petitions for Fees were filed approximately 60-90 days after the time for appeal of the Final Order in the rule challenge cases had passed. The Final Order entered in the rule challenge proceeding specifically retained jurisdiction for an award of fees. There is no evidence that the Department was adversely affected by any delay in filing the Petitions for Fees.
Conclusions Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Insurance shall pay total fees and costs as follows: The Florida Bankers Association shall receive a total of $55,537.53 The Community Bankers of Florida shall receive a total of $11,096.23. DONE AND ORDERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 December, 2000. COPIES FURNISHED: Virginia B. Townes, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 231 Orlando, Florida 32802-0231 Counsel for Florida Bankers Association Michael H. Davidson, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Counsel for Department Martha J. Edenfield, Esquire Pennington, Moore, Wilkinson & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Counsel for Community Bankers of Florida Eli S. Jenkins 3330 Overlook Drive, Northeast St. Petersburg, Florida 33703 Authorized Representative of Specialty Agents, Inc. Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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 one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second 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.
The Issue Whether this action is barred by the four-year statute of limitations. § 95.11(3)(f), Fla. Stat.
Findings Of Fact After review of the file, the pleadings and relevant statutory and case law it is clear that Petitioner was terminated from his employment with North Florida Evaluation and Treatment Center on April 27, 2000, for alleged excessive absences. Petitioner’s termination was the last adverse employment action taken by his employer that could possibly give rise to any cause of action for employment discrimination based on race, disability or retaliation. Section 95.11(3)(f), Florida Statutes, bars a cause of action based on a statutory right if an action on that cause has not been brought within four years of the date the last action occurred that gave rise to the cause of action. As indicated above, the last employment action taken by Petitioner’s employer occurred on April 27, 2000. Four years from that date was April 26, 2004. Petitioner filed his Charge of Discrimination with FCHR on May 31, 2000. 180 days elapsed with no determination on Petitioner’s charge being made by FCHR. On May 6, 2005, four years after Petitioner’s termination, FCHR entered a Notice of Determination: No Cause and advised Petitioner of his right to file a Petition For Relief within 35 days pursuant to Section 760.11, Florida Statutes. Petitioner filed his Petition for Relief on or around May 11, 2005, within the 35-day period, but well after the Four-year statute of limitations had expired. Since over four years have passed since Petitioner’s termination, Petitioner’s cause of action is barred by Section 95.11, Florida Statutes, and should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 5th day of August, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 William H. Mack, Jr. Post Office Box 1373 High Springs, Florida 32643 Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
Findings Of Fact The RFP Respondent issued a request for proposals in October, 1988, entitled "Turnpike Bridge Replacement Design/Build Project, State Road 91 (Florida's Turnpike)" (the "RFP"). The RFP solicited technical and price proposals for state Project Nos. 97890-3325 and 97930-3324. The State Projects involved the design and construction of temporary detours and permanent replacement bridges over canal crossings at several locations on Florida's Turnpike. The RFP required bridges to be constructed as permanent structures at each of the project sites. Respondent advised interested parties at the scope of services meeting on October 18, 1988, that detour bridges would also be required at all of the project sites. Local permitting was a key factor in the scope of services required for the projects contemplated in the RFP. Respondent advised interested parties, including Petitioner and Intervenor, at the scope of services meeting that Respondent had done no coordinating with local agencies and that local permitting was the responsibility of each party responding to the RFP ("offeror"). The local agency with responsibility for issuing permits for a majority of the canal crossings in the RFP was the Lake Worth Drainage District ("Lake Worth"). Both Petitioner and Intervenor inquired of Lake Worth while preparing their respective technical proposals to confirm Respondent's representation that bridges would be required for both detours and permanent structures at all project sites. Lake Worth advised Petitioner that vertical clearances and hydraulics required bridges for both detours and permanent structures at all canal crossings subject to Lake Worth's jurisdiction. However, Lake Worth advised Intervenor, on or about October 26, 1988, that culverts would be acceptable for detours at three of the project sites. Kenneth Bryant was the President of DSA Group, Inc. ("DSA"). DSA is a consulting engineering firm that was retained by Intervenor to assist in the preparation of its technical and price proposals. Mr. Bryant asked Lake Worth why culverts would not be acceptable for permanent structures if culverts were acceptable for detours. Lake Worth responded that consultants for Lake Worth would look into the hydraulics of the entire system. Petitioner and Intervenor submitted their respective technical proposals on or about January 11, 1989. 2/ Intervenor used culverts in its technical proposal at those canal crossings where Lake Worth had approved the use of culverts for detours. Intervenor also included documentation of the approvals by Lake Worth. Petitioner included bridges in its technical proposal for all detours and permanent structures. The date for submitting price proposals was changed by Respondent several times. The original date was scheduled for 30 days after receipt of the technical proposals. After several delays, price proposals were timely submitted by Petitioner and Intervenor on June 21, 1989. The opening of price proposals was set for July 6, 1989, pursuant to a letter dated June 23, 1989, from Bill Deyo, Design/Build Coordinator for Respondent. The letter stated in relevant part: ... If approved by the Final Selection Committee the selected team will be posted on July 10, 1989, with the final awarding scheduled for July 14, 1989. Award and execution of this contract is contingent upon approval of budget by the Governor's office. Respondent selected Petitioner's proposal as number one and Intervenor's proposal as number two. The Final Selection Committee issued a "memo" on July 6, 1989, authorizing award of the contract. 3/ Award and execution of the contract was approved by the Governor's office. 4/ Rejection of All Proposals On July 10, 1989, Respondent sent a telegram to each offeror cancelling the posting of "bid" tabulations for that day. On August 31, 1989, the Final Selection Committee issued a memorandum rescinding its authorization to award the contract for the RFP, and requested its Contracts Administration Office to notify all "...Design/Build teams of the decision to REJECT all price proposals." On September 12, 1989, Respondent notified all offerors by certified mail of Respondent's decision to reject all "bids". No reason for Respondent's rejection of all price proposals was stated in the certified letter. At that time, offerors were not otherwise advised by Respondent of the reason for the rejection. Respondent rejected all price proposals based upon a substantial reduction in the scope of services required for the RFP. Between October, 1988, and August 31, 1989, Lake Worth determined that culverts would be acceptable instead of bridges at five of the six project sites within the jurisdiction of Lake Worth. Lake Worth's change in position substantially reduced the scope of services required in the RFP. The value of that reduction in the scope of services was approximately $3.6 million. 5/ Respondent knew or should have known from the technical proposal submitted by Intervenor on January 11, 1989, that the scope of services required in the original; RFP had been reduced to the extent Lake Worth had approved the use of culverts instead of bridges for the detours at some of the project sites. Respondent did not investigate the potential reduction in the scope of services until after the opening of price proposals on July 6, 1989. The parties stipulated at the formal hearing that Respondent's rejection of all price proposals was not at issue. Therefore, the question of whether Respondent's rejection of all proposals was arbitrary, capricious, or beyond the scope of Respondent's discretion as a state agency is not at issue in this proceeding. 6/ Respondent's Existing Rule The legislature required Respondent to adopt by rule procedures for administering combined design/build contracts. Section 337.11(5)(b), Florida Statutes. Accordingly, Respondent adopted Florida Administrative Code Rule 14- 91.006 on March 13, 1988 ("Rule 14-91.006"). 17. Rule 14-91.006(5) provided: The Deputy Assistant Secretary for Technical Policy and Engineering Services, jointly with the Deputy Assistant Secretary representing the District in which the project is located, may determine it is in the best interest of the state to provide funds to firms selected for preparation of technical and price proposals in response to the Design Criteria Package. Each firm selected shall receive identical fixed fees for this work. Specific Authority 334.044(2) 337.11(5)(b) F.S. Law implemented 337.11(5) F.S. History-New 3-13-88. (emphasis added) Rule 14-91.006(5) was adopted to facilitate competitive responses to a request for proposals by paying fixed fees to firms selected by Respondent to prepare technical and price proposals. Rule 14-91.006(5) was also adopted so that Respondent could compensate offerors, retain their technical proposals, and use the design concepts on similar projects. Rule 14-91.006 was amended on June 13, 1990, in relevant part, by repealing Rule 14-91.006(5). The repeal of Rule 14-91.006(5) occurred approximately 33 days after the date of the formal hearing but before the entry of a final order in this proceeding. 7/ Request for Payment After Respondent notified offerors of the rejection of all price proposals, Petitioner and Intervenor requested Respondent to make a determination of whether it was in the best interest of the state to provide funds to Petitioner and Intervenor for the preparation of their respective technical and price proposals in accordance with Rule 14-91.006(5). Petitioner and Intervenor requested on several occasions that the Deputy Assistant Secretary for Technical Policy and Engineering Services jointly with the Deputy Assistant Secretary for the Turnpike convene a meeting to make the determination authorized in Rule 14-91.006(5) Informal conferences with Respondent's representatives were requested on at least four occasions to discuss the issue of Petitioner's compensation for its technical and price proposals. Respondent's representatives met with Petitioner a few days before the formal hearing on May 10, 1990. Respondent stated that it had no statutory authority to compensate Petitioner for Petitioner's technical and price proposals in the absence of a contract. Respondent neither contracted with Petitioner and Intervenor to pay for their technical and price proposals nor offered to enter into such a contract. Petitioner offered to enter into such a contract and also offered to provide computer tapes containing plans and specifications required in the RFP if Respondent would agree to compensate Petitioner. Repeal of Respondent's Existing Rule Sometime between March 13, 1988, and October, 1988, Respondent considered the payment of funds pursuant to Rule 14-91.006(5) in a design/build project that preceded the RFP. 8/ Respondent requested funds from the comptroller but was advised by the comptroller that no funds could be provided pursuant to Rule 14-91.006(5) in the absence of a contract. Respondent's general counsel confirmed that there was no statutory authority to provide funds pursuant to Rule 14-91.006(5) in the absence of a contract. Respondent took no public action to repeal Rule 14- 91.006(5) until March 16, 1990, approximately two years after the earliest date Respondent could have received the directives from its comptroller and general counsel advising Respondent that Rule 14-91.006(5) exceeded its statutory authority. Instead of formally repealing Rule 14-91.006(5), Respondent followed the comptroller's recommendation to obtain legislative authority to pay funds pursuant to Rule 14- 91.006(5). Respondent unsuccessfully proposed such legislation to the House Transportation Committee during the 1989 legislative session. In November, 1989, Respondent drafted an amendment to Rule 14-91.006 which, in relevant part, repealed Rule 14-91.006(5). Notice of the proposed formal repeal of Rule 14- 91.006(5) was published in the Florida Administrative Weekly on March 16, 1990. The amendment to Rule 14-91.006 was adopted and Rule 14-91.006(5) was formally repealed through appropriate rulemaking procedures on June 13, 1990. During 12 design/build projects, Respondent never paid funds to any firm for technical and price proposals when the firm had not been awarded a contract pursuant to a request for proposals. Respondent never adopted standards for determining the proper timing for payment of funds pursuant to Rule 14-91.006(5). Respondent never adopted standards for determining when it would be in the best interest of the state to provide funds pursuant to Rule 14- 91.006(5). Respondent refused to apply Rule 14-91.006(5) and refused to determine if it would be in the best interest of the state to provide funds to Petitioner and Intervenor for their respective technical and price proposals. The sole reason given by Respondent for its refusal to apply Rule 14-91.006(5) was the lack of statutory authority to provide funds to firms selected for preparation of technical and price proposals in the absence of a contract. Respondent's representatives never considered applying Rule 14- 91.006(5). When Respondent's representatives met with Petitioner shortly before May 10, 1990, they stated that they would like to provide the requested funds and that such funds should be provided, but that no statutory authority existed for providing such funds in the absence of a contract. The signatories to the memorandum from the Final Selection Committee, dated August 31, 1989, never met until after the meeting that took place shortly before May 10, 1990, to discuss payment for the technical and price proposals submitted by Petitioner and Intervenor. When they did meet, it was determined that no statutory authority existed to provide funds pursuant to Rule 14-91.006(5) in the absence of a contract. Respondent never intended to compensate either Petitioner or Respondent for their respective technical and price proposals in the absence of a contract. Respondent never conducted any review of the technical and price proposals prepared and submitted by Petitioner and Intervenor for the purposes described in Rule 14-91.006(5). Two significant factors to be considered in making such a determination, however, would have been the benefit derived by Respondent from the technical and price proposals submitted and the effect that the provision of such funds would have on competition. Best Interest of the State Payment of funds to Petitioner and Intervenor would have been in the best interest of the state within, the meaning of Rule 14-91.006(5). 9/ Respondent derived substantial benefit from the technical and price proposals submitted by Petitioner and Intervenor including a reduction in the cost of State Project Nos. 97890-3325 and 97930-3324 in the approximate amount of $3.6 million. The fair market value of the proposals submitted by Petitioner and Intervenor was between $500,000.00 and $700,000.00 for each of the two proposals. All of the plan sheets and drawings were completed. The plans were prepared in accordance with Respondent's criteria for plan preparation. Every detail was followed and a complete maintenance of traffic plan was included. Where bridges were designed, the bridge calculations were included. Very little work was left to be done. In order to price out a project of the magnitude and scope required in the RFP, the technical proposals had to be very close to final design. Petitioner's technical proposal for both projects contemplated in the RFP was recorded on magnetic media in Petitioner's computer automated drawing machine. The magnetic media files could be easily transferred to Respondent. Petitioner at all times was ready, willing, and able to make such a transfer if Respondent had agreed to provide funds to Petitioner pursuant to Rule 14- 91.006(5). A great deal of valuable information was contained in the technical proposals prepared and submitted by Petitioner and Intervenor. Eighty to 90 percent of the engineering decisions were made and depicted either on the preliminary drawings or within the calculations included in the technical proposals. Information gathering and coordination with local permitting agencies, including Lake Worth, was a major component of designing and building the projects described in the RFP. Those kinds of activities required a good deal of time from higher level personnel in each organization. Respondent derived benefit from the technical proposals prepared by Petitioner and Intervenor irrespective of whether bridges or culverts are ultimately used at the canal crossings in the RFP. The only change that would be required would be to erase the bridges and insert details for a culvert crossing. Respondent derived benefit from the technical proposals prepared by Petitioner and Intervenor with respect to the projects contemplated in the RFP and similar projects in the future. Respondent can "relet" the project in the future and intends to do so. 10/ Respondent has retained the technical and price proposals submitted by Petitioner and Intervenor pending the outcome of this proceeding. Respondent's unwritten policy is to either return technical and price proposals to their offerors or destroy such proposals upon the concurrence of the, appropriate offeror. After this proceeding is concluded, Respondent intends to either return or dispose of the technical and price proposals submitted by Petitioner and Intervenor in a manner consistent with its unwritten policy. Reliance On Respondent's Existing Rule Petitioner and Intervenor were aware of Rule 14-91.006(5) in preparing and submitting their respective technical and price proposals. Neither Petitioner nor Intervenor, however, presented evidence of the extent to which they may have relied on Rule 14-91.006(5). Petitioner and Intervenor did not demonstrate that they were induced by Rule 14-91.006(5) to respond to the RFP or that Rule 14-91.006(5) was even a material or significant consideration to them. Payment of funds pursuant to Rule 14-91.006 (5) was neither addressed in the RFP nor discussed by the parties prior to Respondent's rejection of all price proposals. The record leaves open to speculation whether Petitioner and Intervenor would not have responded to the RFP in the absence of Rule 14- 91.006(5).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's written formal protest should be DENIED; Respondent should return the respective technical and price proposals to Petitioner and Intervenor; Respondent should not provide funds to either Petitioner or Intervenor pursuant to former Rule 14-91.006(5). DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of January, 1991. DANIEL MANRY 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 10th day of January, 1991.
Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
The Issue The issue is whether Petitioner, Michael Anthony Dipple, is entitled to an award of attorney's fees against Respondent, Pinellas County Construction Licensing Board, pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On January 3, 2008, Petitioner filed the Motion, seeking attorney's fees and costs as the prevailing party in DOAH Case No. 07-3664. On November 5, 2007, Respondent filed its Notice of Voluntary Dismissal of DOAH Case No. 07-3664, and the file of the Division of Administrative Hearings was closed by an Order entered on November 6, 2007. Respondent concedes that Petitioner is a prevailing small business party in the underlying proceeding, pursuant to Section 57.111, Florida Statutes. In the underlying proceeding, Respondent received a complaint from Joseph Lassen on January 26, 2007. Mr. Lassen stated that Mr. Dipple claimed to have run out of money and was therefore unable to complete the room addition he had contracted to perform on Mr. Lassen's house. Mr. Lassen stated that he feared Mr. Dipple was moving out of state and never had any intention of completing the work. With his complaint, Mr. Lassen included a copy of the contract, dated May 22, 2006, in which Mr. Dipple undertook to build the new room addition for the price of $76,350. The contract called for an initial deposit of $28,000, followed by three draws of $22,000, $17,000, and $10,000, to be paid as different phases of the work were undertaken. Mr. Lassen also included three canceled checks: one dated May 22, 2006, in the amount of $28,000; one dated August 8, 2006, in the amount of $22,000; and one dated September 25, 2006, in the amount of $18,000. In a letter dated March 2, 2007, signed by investigator Connie Garriques-Sang and sent to Mr. Dipple's business address in Largo, Respondent informed Mr. Dipple of the complaint. The letter stated, in relevant part: The enclosed complaint has been filed against you. If you wish to resolve this matter before the Pinellas County Construction Licensing Board takes further action, you may do so. Upon resolution, you should notify our office so that we may update your file on this matter. Please use the attached form in response to the complaint and return it to my office within ten (10) working days. (Emphasis added.) Respondent's probable cause panel convened on March 22, 2007. At that time, no response from Mr. Dipple had been received by Respondent. The probable cause panel considered Mr. Lassen's complaint and the attachments thereto. The panel also considered information obtained by Ms. Garriques-Sang from the City of Largo's building inspector indicating there were code violations regarding electrical work that were holding up the final inspection. Based on the information before it, the panel found probable cause to proceed with disciplinary action against Mr. Dipple. Mr. Dipple's response to Ms. Garriques-Sang's letter was received by Respondent on March 23, 2007, the day after the probable cause panel met and voted to proceed with an Administrative Complaint against Mr. Dipple. The delay in Mr. Dipple's response was due in part to the fact that he had moved to Oklahoma and the letter had to be forwarded to his new address. Nonetheless, he dated his response March 13, 2007, indicating that he must have received Ms. Garriques-Sang's letter on or before that date. However, the postmark on the envelope containing Mr. Dipple's response indicates that he waited an additional week, until March 20, 2007, to actually mail the response. Mr. Dipple's response included a letter from his attorney to Mr. Lassen and a copy of a phone message3 that Mr. Lassen left at Mr. Dipple's place of business stating that Mr. Lassen wanted another company to finish the work. Mr. Dipple generally contended that Mr. Lassen thwarted his attempts to complete the job. Respondent issued an Administrative Complaint, dated March 30, 2007, alleging the following facts: Mr. Dipple contracted with Mr. Lassen on February 22, 2006, to build a room addition at Mr. Lassen's Largo home; that Mr. Dipple obtained a permit for the work on June 23, 2006; that the permit was active, but work was not complete and there were outstanding tags for code deficiencies; that Mr. Dipple had changed his business address and had not performed any work on Mr. Lassen's house for over 90 days; that Mr. Dipple had informed Mr. Lassen that he did not have enough money to finish the job; and that Mr. Lassen was forced to hire another contractor to finish the job, at additional expense. The Administrative Complaint had three counts. Count One alleged that Mr. Dipple abandoned the job in violation of Subsection 489.129(1)(j), Florida Statutes, and Section 24(2)(k), Chapter 75-489, Laws of Florida, as amended. Count Two alleged that Mr. Dipple committed financial mismanagement or misconduct in the practice of contracting that caused financial harm to a customer in violation of Subsections 489.126(2) and (4), Florida Statutes, Subsection 489.129(1)(g), Florida Statutes, and Section 24(2)(h), Chapter 75-489, Laws of Florida, as amended. Count Three alleged that Mr. Dipple committed fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting in violation of Subsection 489.129(1)(m), Florida Statutes, and Section 24(2)(m), Chapter 75-489, Laws of Florida, as amended. The case was referred to the Division of Administrative Hearings on August 16, 2007, and assigned DOAH Case No. 07-3664. With the Administrative Complaint, Respondent forwarded Mr. Dipple's Motion to Dismiss and Statement of Facts, originally served on Respondent on August 9, 2007. Mr. Dipple denied the allegations of the Administrative Complaint, stating that Mr. Lassen had interfered with the contract by refusing to allow Mr. Dipple to work on scheduled days; that Mr. Lassen wrongfully terminated the contract before the work was completed and refused to allow Mr. Dipple to complete the work; that Mr. Lassen owed money to Mr. Dipple; and that all portions of the work performed by Mr. Dipple had passed all building inspections. Mr. Dipple moved that the charges be dismissed on the ground that the alleged facts did not support any of the three counts stated in the Administrative Complaint. With the Administrative Complaint, Respondent also forwarded Mr. Dipple's notice to Respondent of his intent to recover attorney's fees and costs, originally served on Respondent on July 20, 2007. DOAH Case No. 07-3664 was scheduled for hearing on September 24, 2007, in Largo, Florida. On Mr. Dipple's motion, the hearing was continued and rescheduled for November 27, 2007. On November 5, 2007, Respondent filed its Notice of Voluntary Dismissal of the Administrative Complaint. The Division of Administrative Hearings' file in DOAH Case No. 07- 3663 was closed by Order dated November 6, 2007. Mr. Dipple's contends that the probable cause panel lacked other available information that could have and in fact did subsequently exonerate him of the charges,4 and that Respondent violated its own rules, Chapters 455 and 489, Florida Statutes, and fundamental principles of due process in precipitously arriving at a probable cause determination before Mr. Dipple had a fair opportunity to respond to the March 2, 2007, letter from Ms. Garriques-Sang. It is found that the information before the probable cause panel was sufficient to support the panel's decision to pursue an Administrative Complaint against Mr. Dipple, in the absence of any contrary information. The evidence submitted in Mr. Dipple's March 23, 2007, response to Mr. Lassen's allegations provided an insufficient basis for a finding that the response would have altered the probable cause panel's decision. While it does appear that Mr. Dipple submitted evidence that Mr. Lassen had instructed him to stop work, such evidence did not necessarily refute Mr. Lassen's allegations that Mr. Dipple's actions had forced him to seek another contractor to complete the job. Mr. Lassen also alleged something approaching fraud against Mr. Dipple, stating that he feared Mr. Dipple was planning to move away from Largo and never intended to complete the work. Mr. Dipple's response did not directly address this allegation. Further, even if the probable cause panel had timely received Mr. Dipple's response, the fact that the response was mailed from Mr. Dipple's new residence in Oklahoma would, if anything, have provided circumstantial support to Mr. Lassen's allegations.
The Issue The ultimate issue for determination is whether the Department of Environmental Protection should award attorney's fees and costs to G.E.L. Corporation pursuant to Section 120.595, Florida Statutes (2002).
