The Issue Whether Petitioners are entitled to attorneys' fees and costs.
Findings Of Fact The following facts are taken verbatim from the parties' Joint Pre-Hearing Stipulation (JPS): On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Vipul Patel's Petition for Variance from or Waiver of Rule 64B16-26.2031, F.A.C. (hereinafter Petition for Variance). On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Se Young Yoon's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Miriam L. Hernandez's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mirley Aleman- Alejo's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied John H. Neamatalla's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Md. A. Samad Mridha's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Valliammai Natarajan's Petition for Variance. For convenience sake, the foregoing-named Petitioners are referred to as "Group 1." Petitioners' "Group 2" are identified in paragraphs 38 through 41 of the JPS: On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Saurin Modi's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Deepakkumar Shah's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Ravichandran Sokkan's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mijeong Chang's Petition for Variance. Respondent issued orders denying the Petitions for Variance for Group 1 Petitioners on or about May 9, 2008. Respondent issued orders denying the Petitions for Variance for Group 2 Petitioners on or about July 3, 2008. Subsequent to the entry of the orders denying their variances, each of Group 1 Petitioners retained counsel and filed petitions to challenge the denial of their variances. Subsequent to the entry of the orders denying their variances, each of Group 2 Petitioners retained counsel and filed petitions to challenge the denial of their variances. All petitions were filed within 21 days of the entry of the orders that denied the variance. Respondent did not dispute the timeliness of the petitions, but took no action on the petitions. Instead, on or about August 21, 2008, Respondent reconsidered the petitions for variance, and granted all of the Petitioners' requests. Respondent did not take action on the requests to challenge the original variance denials, did not refer the cases for formal proceedings, and did not re-visit Petitioners' claims until August 21, 2008. On or about September 5, 2008, Respondent entered orders granting Petitioners' variances. Group 1 Petitioners waited approximately five months to obtain approval of their variances. In the meanwhile, they had retained counsel and filed petitions to challenge the denials. Group 2 Petitioners waited approximately three months for their variances to be approved. They, too, retained counsel to protect their rights. In October 2008, Petitioners filed Petitions for Attorneys' Fees and Costs with Respondent. Respondent did not grant, deny, or refer those petitions to DOAH. On or about November 24, 2008, Petitioners filed a Verified Writ of Mandamus, in the Eighteenth Judicial Circuit Court, Seminole County, Florida, requesting that the court require Respondent to either grant or deny the petitions for attorneys' fees and costs. On or about December 2, 2008, Petitioners served on Rebecca Poston, executive director of the Board of Pharmacy, a summons with petition for writ of mandamus. On or about February 16, 2009, Petitioners filed a Motion for Entry of Clerk's Default for Failure of Respondent to file a Response to the writ. The case was transferred to the Second Judicial Circuit, Leon County, Florida. On or about June 4, 2010, the Second Judicial Circuit, Leon County, Florida, issued an Order to Show Cause on Respondent. Ultimately, the court denied the writ and dismissed the Order to Show Cause. Petitioners then filed Petitions for Attorneys' Fees and Costs with DOAH and the cases were consolidated for hearing. The parties agreed to bifurcate the issues and resolve the issue of whether Petitioners are entitled to attorneys' fees and costs, before addressing the remaining question of the amount of fees and costs, if appropriate to award them. Petitioners were the prevailing parties in the underlying matter, since the variances were granted. On August 1, 2008, Respondent issued a Notice of Proposed Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 1, 2008, A Notice of Proposed Rule for rule 64B16-26.2031 was published in the Florida Administrative Weekly. On August 13, 2008, approximately eight days before the variances were approved, Respondent decided to amend rule 64B16-26.2031. Implicit in this amendment, is the concession that the former version of the rule exceeded Respondent's statutory authority. Respondent approved the amended rule 64B16-26.2031, on or about June 10, 2009. Petitioners maintain that Respondent acted with an improper purpose when it denied Petitioners' initial applications and subsequent petitions for variance. Petitioners assert that Respondent caused undue delay, by failing to timely grant or deny Petitioners' petitions to challenge the variance denials, and that Respondent's failure to grant, deny, or forward the petitions to DOAH, was an abuse of the agency's discretion. Further, Petitioners claim that Respondent should have acted on the petitions for attorneys' fees and costs, or referred them to DOAH. Respondent maintains it acted appropriately and in good faith, because its actions were substantially justified and in accordance with law.
Conclusions For Petitioners: George F. Indest, III Justin C. Patrou The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 For Respondent: Allison Dudley Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this Partial 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 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.
The Issue Whether Petitioner, as a prevailing small business party in an adjudicatory proceeding initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes, in these two cases.
Findings Of Fact As to Both Cases Petitioner, Larry D. Thomas, M.D., is a licensed physician in the State of Florida, having been issued license number ME 036360. Respondent, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine, pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. This matter was filed pursuant to Section 57.111, Florida Statutes. The actions in AHCA Case Nos. 1994-12341 and 1999-57795 were initiated by the Agency, an agent for the Department of Health, a state agency, and neither the Agency nor the Department of Health was a nominal party to the underlying actions. The attorney's fees sought by Petitioner are reasonable in the amount up to $15,000 for each case, and the statutory cap of $15,000 applies to each case separately. Petitioner prevailed in the underlying action, and there are no special circumstances that exist that would make an award of attorney's fees and costs unjust in these cases. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes, because he is a sole proprietor of an unincorporated professional practice, whose principal office is in this state, who is domiciled in this state, whose professional practice is in this state, and whose professional practice had, at the time the action was initiated by the state agency, not more than 25 full-time employees or did not have a net worth of more than $2 million, including both personal and business investments. As to Case No. 02-4843F In 1994, pursuant to Section 455.225, Florida Statutes (currently renumbered as Section 456.073, Florida Statutes), Petitioner was notified of the investigation by the Agency and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, which included an expert opinion by William Yahr, M.D., and medical literature that discussed the risks of the procedure at issue in the case. The expert opinion of Dr. Yahr stated that Petitioner did not fall below the standard of care in this case and that the patient died of a predictable complication of the procedure at issue in the case. The Administrative Complaint in the underlying case, DOAH Case No. 01-4406PL (AHCA Case No. 1994-12341), was filed on May 10, 1999, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; by failing to treat Patient D.J.P.'s preoperative coagulopathy; and by failing to use an alternate vein that would have allowed visualization of the shunt placement, thereby reducing the risk of causing hemorrhage given the patient's preoperative history. As required by statute, the probable cause panel that considered this matter was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine. Present at the May 5, 1999, meeting of the South Probable Cause Panel of the Board of Medicine (Panel) were Panel members Margaret Skinner, M.D., Chairperson of the Panel; John Glasgoe, M.D.; and Becky Tierney. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Agency Investigations; Larry McPherson, Senior Attorney for the Agency; and Susan Drake, M.D., Medical Consultant for the Agency. Prior to the May 5, 1999, meeting, the members of the Panel received and reviewed the Agency's entire investigative file, including Petitioner's response and Dr. Yahr's opinion, and the expert opinions of Henry Black, M.D., and John Kilkenny, III, M.D. The expert opinions available to the Panel were those completed in 1997 and 1999, respectively. Dr. Black opined that Petitioner met the standard of care in the case, but admitted that he did not perform the procedure at issue in the case; Dr. Kilkenny, who did perform the procedure at issue in the case, opined that Petitioner failed to meet the standard of care in the case; and Dr. Yahr opined in 1994 that there was no evidence that Petitioner failed to meet the standard of care in the case, but did not state whether he performed the procedure at issue in the case. In addition, the Panel had access to the written response to the investigation prepared by counsel on behalf of Petitioner, which was submitted on October 13, 1994. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the Panel that any questions they had regarding the materials that they received, the recommendations that had been made, or the investigation that had been conducted should be directed to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel discussed the complaint very briefly, asked no questions, and voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. The record in the underlying case does not demonstrate why there was an inordinate delay between the completion of the Agency's investigation in October 1994 and the Agency's retention of Dr. Black in 1997; why Dr. Kilkenny was retained in 1999 after Dr. Black had given his opinion on August 4, 1997, that there was no deviation from the standard of care by Petitioner; nor why Dr. Yahr's opinion was not given any consideration. While Dr. Black may not have had the appropriate qualifications to render an expert opinion in the case, both Dr. Kilkenny and Dr. Yahr did have sufficient qualifications to render an expert opinion in this matter. Further, there was no assertion by the prosecuting authority that any of the fact witnesses needed to prove this case were even available after five years of delay. Nor did the counsel for the Panel bring any special attention to the Panel members in regard to the possible proof problems with this case caused by the inordinate delay in bringing the case before the Panel. Finally, no explanation has been given for the delay in forwarding the Administrative Complaint, issued on May 10, 1999, to the Division of Administrative Hearings until October 15, 2001. As to Case No. 02-4844F The Administrative Complaint in the underlying case, DOAH Case No. 01-4407PL (AHCA Case No. 1999-57795) was filed on June 13, 2001, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances; by failing to adequately monitor Patient H.H. post-operatively given Patient H.H.'s high risk for distal emboli and/or due to evidence of tissue ischemia; by failing to clamp the arteries distally prior to manipulation of the aneurysm; and/or by failing to take adequate steps to prevent emboli, such as ensuring periodic monitoring of the patient's condition post-operatively for evidence of ischemia or other problems. Pursuant to Section 455.225, Florida Statutes (now at 456.073, Florida Statutes), Petitioner was notified of the investigation by Respondent by letter dated November 12, 1999, and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, denying that he violated the standard of care. The Investigative Report was issued on February 11, 2000. The probable cause panel that considered this matter met on June 8, 2001, and was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine, as required by statute. However, the consumer member of the Panel was unavailable to attend the Panel meeting that day. Present at the June 8, 2001, meeting of the Panel were Panel members Fued Ashkar, M.D., Chairperson of the Panel, and Gustavo Leon, M.D. Also present at the meeting were Lee Ann Gustafson, Acting Board Counsel, and Randy Collette, Senior Attorney for the Agency. Prior to the probable cause meeting, the members of the Panel received and reviewed what was purported to be the Agency's complete investigative file, including Petitioner's response, and the expert opinion of James Dennis, M.D. The expert opinion available to the Panel was that of James Dennis, M.D., a board-certified vascular surgeon, who performed the procedure at issue in the case. Dr. Dennis opined that Petitioner failed to meet the standard of care in the case. Prior to consideration of the case, Ms. Gustafson advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Gustafson also advised the Panel that any questions they had regarding the materials that they received, the recommendations that have been made, or the investigation that has been conducted should be direct to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. Following the filing of the Administrative Complaint, Petitioner timely filed a request for a formal hearing. After probable cause was found in the underlying case, the matter was referred to the Division of Administrative Hearings, and shortly before the date of the scheduled formal hearing, the attorneys for Petitioner and Respondent discovered that Respondent's expert, Dr. Dennis had been retained by Petitioner's former attorneys, after probable cause had been found, to give an opinion on behalf of Petitioner in the underlying case. This resulted in the disqualification of Dr. Dennis' opinion. The formal hearing was continued, and Respondent retained another expert, Kenneth Begelman, M.D. He opined that Petitioner fell below the standard of care in the case, and his testimony was used at the formal hearing. No reference to the opinion of Dr. Dennis was made or used at the formal hearing. Dr. Begelman's opinion was also not available to the Panel at the time that probable cause was found against Petitioner, nor did Respondent seek to return jurisdiction to the Panel for their reconsideration. Any objection to this procedure was waived by the parties. At the formal hearing, a CT Scan of the patient in question and missing nurses' notes relating to Petitioner's postoperative monitoring were introduced into evidence. Upon review of this new evidence and under cross- examination, Respondent's expert, Dr. Begelman, could not conclusively determine whether Petitioner's surgical and post- surgical treatment of Patient H.H. fell below the standard of care. However, it is clear from the record in the underlying case that the evidence regarding Petitioner's performance of the procedure at issue in the case, as well as his postoperative care of the patient, was in dispute. The expert opinion of Dr. Dennis and Petitioner's response highlight this fact. The events involving Dr. Dennis, which occurred after the finding of probable cause by the Panel, and Respondent's subsequent use of Dr. Begelman at the formal hearing are not relevant to the determination of whether Respondent was substantially justified in finding probable cause against Petitioner in the underlying case. And, while the underlying case was ultimately resolved in Petitioner's favor, there were disputes of fact in this case and the Agency and Respondent clearly were substantially justified to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs, as to DOAH Case No. 02-4844F.
The Issue Whether or not Petitioner Robert R. Hambley is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes.
Findings Of Fact This case arises in the wake of Robert R. Hambley v. Department of Professional Regulation, DOAH Case No. 88-4788, for formal administrative proceeding stemming from a complaint filed against Petitioner on September 28, 1987. On July 5, 1989, the undersigned Hearing Officer entered a Recommended Order imposing an administrative fine against the Petitioner in the amount of $1,000.00 and placing the Petitioner's license on probation for a period of one (1) year. Petitioner did not file exceptions to the subject recommended order. On August 22, 1989, the Respondent, Department of Professional Regulation, Division of Real Estate, rejected the proposed order and revoked the Respondent's license. Thereafter, Petitioner retained the services of the law firm of LARSON, CONKLIN, STANLEY, PROBST & BOBENHAUSEN, P.A. to represent him, which attorney's filed an appeal in the Second District Court of Appeal contesting the Division of Real Estate's Final Order, specifically the aggravation of the penalty, to wit, revocation of Petitioner's license. In connection with Petitioner's legal representation, he incurred reasonable costs and fees in the amount of $504.49 and $3,393.00, respectively. On October 5, 1990, the Second District Court of Appeal entered its order affirming the findings as found by Recommended Order, but reversed and remanded for implementation of the recommended penalty of $1000.00 and rejecting the recommended penalty of probation, since that was not an authorized penalty at the time of the hearing. The basis of the Court's decision is that Respondent failed to adequately comply with Section 120.57(1)(b)(10), Florida Statutes, in order to properly increase the severity of the recommended penalty. See Bernal v. Department of Professional Regulation, 517 So.2d 113, (Fla. 3d DCA 1987), affirmed 531 So.2d 967 (Fla. 1988). Thereafter, on October 10, 1990, the Respondent filed a motion for rehearing which motion was denied on November 1, 1990. On November 11, 1990, a Mandate issued from the Second District Court of Appeal and Petitioner's license was reinstated on November 21, 1990, with Respondent issuing a Final Order rescinding its prior order of August 15, 1989, and by issuing a supplemental Final Order on December 4, 1990. That December 4, 1990, order implemented the recommended penalty with the exception of probation which was not statutorily authorized. The Administrative Complaint which was filed jointly against Petitioner was a six count administrative complaint and the entity through which he dealt, Real Pro Associates, Inc. Petitioner was found guilty of participating in five transactions which conduct amounted to proscribed conduct within the purview of Subsection 475.25(1)(a), Florida Statutes, by paying real estate commissions totaling over $28,500.00 to Paul George, an unlicensed person. Petitioner was also found guilty of culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes, for having failed to inform or otherwise disclose to Stewart Fidelity Title Company, the company which handled the closing for the transactions, that the stated escrow deposits were never placed in an escrow account as represented in the contracts for sale and purchase which would alert the lender that the purported purchaser had a "no equity" position in the purchases. Petitioner was, via Recommended Order, required to pay an administrative fine of $1,000.00 within thirty (30) days of the entry of the Final Order. Petitioner was found guilty of all violations for which he was cited in the Administrative Complaint filed by Respondent and a monetary penalty was imposed. Respondent was substantially justified in asserting that the Petitioner was in violation of the real estate licensing law when it issued the subject complaint. That proceeding was premised on a reasonable basis in law and fact when it was initiated. See Miller v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 89-5042F, 12 FALR 2312, 2314 filed 5/16/90. The Florida Real Estate Commission enhanced the penalty to recommendations which were within the parameters set forth in the disciplinary guidelines of the Florida Real Estate Commission as provided for by Rule Sections 21V-24.001(2) and (3), Florida Administrative Code. The rule sections provided that the Petitioner Hambley could have been fined, for such violations, up to $1,000.00 per count and may have had all his licenses, registrations, certifications and permits penalized as follows: (h) 475.25(1)(b) - Up to 5 years suspension or revocation. [Emphasis supplied] (n) 475.25(1)(h) - Up to 2 years suspension. Petitioner has not demonstrated that it was a prevailing small business party under Section 57.111, Florida Statutes. Moreover, the actions of the Florida Division of Real Estate were substantially justified as defined by Subsection 57.111(3)(e), Florida Statutes. This is borne out by the findings as found by the undersigned Hearing Officer, which provides both a reasonable basis in law and fact as well as substantial justification of the administrative action when it was initiated. Particularly, the complaint against Petitioner was reviewed by a probable cause panel on September 15, 1987. That material which was reviewed by the panel included an investigative report and documentary evidence, all of which was presented to the panel and ultimately to the undersigned Hearing Officer. Appended to the investigative report was some 30 pages of exhibits which provided an adequate basis to support the charges of culpable negligence and breach of trust in a business transaction.
Findings Of Fact Petitioner Bobbie G. Scheffer was one of two respondents in Department of Professional Regulation, Division of Real Estate v. Scheffer and Ecoff, No. 89-4699, administrative proceedings respondent Department of Professional Regulation (DPR) initiated by filing an administrative complaint alleging, as summarized in the recommended order: that respondent Scheffer "[a]t all times material . . . licensed and operating as qualifying broker for Rivard Realty, Inc." and respondent Ecoff "a licensed real estate salesman . . . provided a copy of MLS computer print out sheet pertaining to certain residential property . . . to Daniel H. and Dorothy M. Stacy . . . [to verify] that the house was eight years old and on a commercial sewer system", that respondent "Ecoff was the owner of the property and the listing salesman"; that the Stacys "entered into a contract to purchase the property . . . relying upon the representations made by the [r]espondents"; that "Scheffer was the broker who handled the sale while Ralph S. Ecoff was licensed as a salesman in her employ"; that respondents "failed to disclose or point out to the buyers the true age of the house being 14 years or that the house was actually on a septic system"; that "the buyers closed on the house believing the age of the house to be eight years old and having a commercial sewer system"; that respondent "Ecoff admitted knowing that the house was on a septic tank"; and that respondents are therefore both guilty of "misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes" and of "having placed or caused to be placed an advertisement which is false, deceptive or misleading in violation of Rule 21V-10.025," Florida Administrative Code. But the recommended order concluded that "the evidence did not clearly and convincingly show that respondent Scheffer actually knew or had reason to know the listing was inaccurate." At page 7. The final order adopted this conclusion. By stipulation, petitioner qualifies as a prevailing small business party who meets all rule and statutory requirements under the Florida Equal Access to Justice Act and Rule 22I-6.035, Florida Administrative Code. In successfully defending against the administrative complaint, Ms. Scheffer incurred reasonable attorney's fees in the amount of $1,980 and costs in the amount of $219.75, for a total of $2,199.75. She incurred additional reasonable attorney's fees in the amount of $330 in the present proceeding. 1/ The facts proven at hearing are set out in detail in the attached recommended order entered in Case No. 89-4699 and are adopted by reference in their entirety here. No evidence adduced in the present proceeding proved respondent had materially different or additional information when it decided to file the administrative complaint. 2/
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
The Issue Whether Keith Jackson, Ph.D. ("Petitioner") should be required to pay FAMU's claimed overpayment of salary as calculated in the amount of $29,141.57, for the pay periods between July 11, 2008 and December 12, 2008.
Findings Of Fact On or about July 1, 2005, Petitioner executed an employment contract with FAMU to serve as Vice President for Research. The contract executed by Petitioner provides that Petitioner "is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated." On July 11, 2008, Petitioner submitted to the University a letter advising that he was resigning from his administrative position with the University as the Vice President for Research. Petitioner's letter of resignation was accepted by the University effective July 11, 2008. Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007. 12 When Petitioner resigned from his administrative position on July 11, 2008, he was a tenured faculty member at the University. FAMU BOT Policy 2005-15, adopted June 30, 2005 and revised on February 12, 2008, requires that the salary for former administrators, such as Petitioner, be adjusted to "the median salary of the employees within the same professorial rank and discipline." On July 11, 2008, Petitioner's annual salary, based on his service as Vice President for Research, was $166,400.00. According to FAMU BOT Policy 2005-15, his salary, upon resignation from his administrative position as Vice President for Research and movement to his faculty position, should have been adjusted to $72,662.00 in that this amount reflected, at the time, the median salary of employees within Petitioner's rank and discipline. Due to administrative oversight, Petitioner, after the effective date of his resignation, continued to receive his full administrative salary of $166,400.00. Petitioner's salary was adjusted to the correct amount beginning with the biweekly pay period of December 12, 2008. Petitioner was erroneously paid his salary of $166,400.00 from July 11, 2008 through the biweekly pay period of December 12, 2008. This resulted in Petitioner receiving a salary overpayment in the amount of $29,141.27. Petitioner has not refunded any money to FAMU.
Conclusions This matter is now before Florida Agricultural and Mechanical University Board of Trustees ("FAMU," "Respondent," or the "University") for final agency action.
Other Judicial Opinions This Order Constitutes Final Agency Action. 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 an original Notice of Administrative Appeal with the Agency Clerk of Florida Agricultural and Mechanical University, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a copy of the Notice of Appeal attached to which is a conformed copy of the order designated in the Notice of Appeal, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The Notice of Administrative Appeal must be filed within thirty (30) days of the date this Final Order is rendered. Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, FAMU General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Robert E. Larkin, Ill, Esq. Jacqueline Lester, Associate Director of Payroll Claudio Llado, DOAH Clerk 16
