Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
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).
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 1, 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.” 2. 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. 3. Petitioner's letter of resignation was accepted by the University effective July 11, 2008. 4. Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007. 12
Conclusions This matter is now before Florida Agricultural and Mechanical University Board of Trustees (“FAMU,” “Respondent,” or the “University”) for final agency action.
The Issue Whether Florida Administrative Code Rule 15A-9.006(2) (the Rule) is an invalid exercise of delegated legislative authority, pursuant to section 120.52(8)(b), (c), and (d), Florida Statutes.
Findings Of Fact An IID is: A breath alcohol analyzer connected to a motor vehicle's ignition. In order to start the motor vehicle engine, a convicted person must blow a deep lung breath sample into the analyzer, which measures the breath alcohol concentration. If the breath alcohol concentration exceeds the fail point on the [IID], the motor vehicle engine will not start. Fla. Admin. Code R. 15A-9.003(13). Rule 15A-9.005, which is entitled, "Specifications," provides in part: All [IIDs] will be required to meet or exceed the standards set forth in the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772- 11787 by the National Highway Traffic Safety Administration. Technical specifications for the operation and installation of the [IID] shall be described in the contract between [Respondent] and the manufacturer(s). The [IIDs] alcohol fail point shall be the level specified by Section 316.1937, Florida Statutes. Rule 15A-9.005(4), (5), and (6) establishes performance specifications for failed-point tests on initial startup and rolling retests and for an emergency bypass. Rule 15A-9.007, which is entitled, "Certification," provides: Each manufacturer under contract with [Respondent] will submit certification from an independent laboratory certifying that their [IID] has been tested in accordance with the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772-11787 by the National Highway Traffic Safety Administration and the [IID] meets or exceeds those specifications, as well as criteria set forth in the contract with [Respondent]. The manufacturer shall be responsible for the continuing certification of [IID] service providers for use of an approved [IID]. Rule 15A-9.003(6) defines "certification" as the "testing and approval process required by [Respondent]." Rule 15A-9.003(16) defines "manufacturer" as the "actual producer of the [IID] who assembles the product and who may provide distribution and services." Rule 15A-9.003(21) defines "service provider" as the "retail supplier of the approved [IID]." Rule 15A-9.008 addresses the installation and removal of IIDs. Rule 15A-9.008(1) requires the "manufacturer or his [sic] representative" to install the IID in accordance with the guidelines of the National Highway Traffic Safety Administration. Rule 15A-19.008(2) requires the "service provider" to develop and deliver an IID orientation to the convicted person. Rule 15A-9.009 addresses the servicing of IIDs. Rule 15A-9.009(2) requires the "service provider" to service the IID at the intervals stated in the contract with Respondent, calibrate the IID, retrieve data from the IID and timely submit the data to Respondent, and check for signs of tampering with the IID. Rule 15A-9.009(5) requires an IID to record the time and date of each breath test, the breath alcohol level of each test, and the time and date of any attempt to tamper with the IID. Rule 15A-9.009(6) requires the "manufacturer or service provider" to maintain a toll-free 24-hour emergency telephone support service and fix or replace any nonoperational IID within 48 hours of any call. Rule 15A-9.006, which is entitled, "Procedure for [IID] Approval," provides: All ignition interlock devices used pursuant to Sections 316.193 and 316.1937, Florida Statutes, must be approved by the department. The department shall contract with a manufacturer or manufacturers of ignition interlock devices for the services and commodities required for implementation of Sections 316.193, 316.1937, and 316.1938, Florida Statutes. The department shall maintain a list of approved ignition interlock devices. For the specific authority and laws implemented, Rule 15A-9.006 cites the same authority: sections 316.193, 316.1937, and 316.1938, Florida Statutes, and Federal Register Volume 57, Number 67, pages 11772-11787. Section 316.193 imposes penalties for DUI offenses. For second and third DUIs, convicted persons must have installed "an [IID] approved by [Respondent] in accordance with s. 316.1938." Section 316.1937 authorizes a court to order the installation of an IID under circumstances other than those described in section 316.193. Section 316.1937 provides that the court may prohibit the convicted person from operating a motor vehicle unless it is equipped with a "functioning [IID] certified by [Respondent] as provided in s. 316.1938 " The most relevant statute to this case is section 316.1938, which provides: [Respondent] shall certify or cause to be certified the accuracy and precision of the breath-testing component of the [IIDs] as required by s. 316.1937, and shall publish a list of approved devices, together with rules governing the accuracy and precision of the breath-testing component of such devices as adopted by rule in compliance with s. 316.1937. The cost of certification shall be borne by the manufacturers of [IIDs]. No model of [IID] shall be certified unless it meets the accuracy requirements specified by rule of [Respondent]. [Respondent] shall design and adopt by rule a warning label which shall be affixed to each [IID] upon installation. The label shall contain a warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a violation of law and may be subject to civil liability. The document at Federal Register, Volume 57, Number 67, pages 11772, et seq., is a notice of the National Highway Traffic Safety Administration of technical specifications for IIDs (Model Specifications). Model Specifications applies to the manufacture, testing, calibration, data-reporting, and tamper-monitoring of IIDs. IIDs are manufactured by 16 corporations in the United States. Most, if not all, states operate IID programs for DUI offenders. Petitioner is a manufacturer and service provider of IIDs. Its sole manufacturing facility is in Cocoa, Florida, where Petitioner employs 30-35 persons. About 35,000 of Petitioner's IIDs are in use in 25 states, but not Florida. Intervenors, which are affiliated corporations, are manufacturers and service providers of IIDs. (References to Intervenors will include either Intervenor, as appropriate.) Pursuant to the contract described below, Intervenors have provided IID services to over 6000 convicted persons in Florida. Intervenor is a manufacturer and service provider of IIDs and presently operates in 46 states. Respondent has tentatively selected Intervenor as the sole vendor for the state of Florida in the 2013-14 procurement described below. In 2003, Respondent issued an invitation to negotiate for IIDs and IID services. Following a tentative award to Intervenors, a vendor challenged the award, arguing, at least in part, that Respondent lacked the authority to limit the number of IID service providers. In a settlement, Respondent awarded the south region of Florida to Intervenors and the north region of Florida to the bid protestor, which was #1 A Lifesafer, Inc. (Lifesafer). In 2004, Respondent entered into contracts for IIDs and IID services with these vendors. As extended, the 2004 contracts are set to expire on March 31, 2014. Respondent issued a Request for Proposals on July 3, 2013 (RFP). Providing for the replacement of the 2004 contracts described in the preceding paragraph, the RFP is to enable Respondent to select up to two vendors to "implement and operate an [IID] Program" in Florida. RFP Attachment C-19 provides that the term of the new contract(s) shall be five years with an "anticipated" renewal term of another five years.2/ The RFP calls for responses detailing, among other things, the IID hardware by name and model, which must comply with Model Specifications requirements; software to provide Respondent with online access to data downloads from IIDs; installation; service, inspection and monitoring; contractor staffing; training of staff; security and fraud prevention; and transition services for IID convicted persons being serviced by a party to the current IID contract. No one filed a specifications challenge to the RFP. Respondent received four responses; they were from Petitioner, Intervenors, Intervenor, and Lifesafer. Petitioner, Intervenors, and Lifesafer have challenged the tentative award to Intervenor, and these bid protests are pending at DOAH as DOAH Case Nos. 13-3924BID, 13-3925BID, and 13-4037BID. Respondent acknowledges that the procurement of IIDs and IID services by contract provides it more flexibility than if it specified requirements and performance standards by rule. Respondent concedes that other states allow IID service providers to operate IID programs with open competition. Respondent contends that procuring these IID services by statewide or regional contract ensures the delivery of services to rural areas that otherwise might be underserved, the delivery of uniform services throughout the state, the transmission from the IID service provider of compliance data that would be jeopardized if numerous IID service providers operated in the state, the existence of a process for the removal of an IID service provider that did not discharge its responsibilities in a timely and competent fashion, and the familiarity among Respondent's limited staff with the limited makes of IIDs in use in Florida.
Conclusions CONSTANTINOS N. SOLDATOS, D.M.D., hereinafter referred to as "Respondent", and the DEPARTMENT OF HEALTH, BOARD OF DENTISTRY, hereinafter referred to as the “Department”, hereby agree to present this Stipulation to the Board of Dentisuy. hereinafter referred to as “Board”, for their consideration and approval. U D Facts 1. For ali times pertinent herein, Respondent was a licensed in the State of Florida. having been issued license number DN 0013314. 2. Respondent was charged by Administrative Complaint (as amended) filed by the Department and properly served upon Respondent with a violation $466. 028(1)(c), Florida Stamnes. A ue and correct copy of the Amended Administrative Complaint is atrached hereto and made a part hereof by reference as Exhibit A : . . 3. . Respondent admits the matters of fact alleged is in the Administrative Complaizt attached S| Aether emma i Deparment ote 003845 f INCLU SOF LAW +. Respondent, in his capacity as a licensed dentist admits that in such capacity he is subject to the provisions of Chapters 466 and 455, Florida Stannes, and the jurisdiction of the Department and the Board. —— | 5. Respondent admits thar the allegations of fact set forth in the Amended Administrative Complaint constitute violations of Chapter 466. Florida Stanutes, and/or the rules enacted Pursuant thereto. STIPULATED DISPOSITION 6. The Respondent Shall pay as administrative costs the sum of three thousand dollars ($3,000.00), which amount shail be paid by Respondent to the Executive Director of the Board of Dentistry within sixty days of the entry of a Final Order accepting this Stipulation. 7. Respondent shall receive a reprimand in this matter. 8. Respondent shall complete twenty-five (25) hours of continuing education in areas to be determined by the Board in addition to those required for license renewal. Upon completion of said continuing education hours the Respondent shall be responsible for i insuring that the provider submit verification of completeness of the courses to the Board of Dentistry. 9. Respondent shall be placed on one year of probation, dating from entry of a Final ; Order accepting this Stipulation, during which time he shall abide by all terms and conditidns of this stipulation. ; Respondent may apply tothe Board for carly termination of his Probation upon completion of the | monetary and continuing education provisions of this Stipulation. 10. itis expressly understood that this Stipulation is subject to approval of the Secretary 2 003846 for the Department of Health and ultimately the Board of Dentistry and has no force and effect unless an order adopting it is entered by the Board. Il, Respondent agrees to be present ar the time of the Board's consideration of this Stipulation, and shall, under oath, answer any questions posed by Board members. counsel for the Board and counsel for the Department. 12. Tt is expressly understood tha a violation ofthe terms of this Stipulation shall be considered a violation of a Final Order of the Board of Dentistry, for which disciplinary action may be initiated pursuant to Chapter 466, Florida Stanes. 13. [tis expressly understood that this Stipulation is subject to approval of the Board and - Department and has no force or effect until an Order is based upon it bv the Board. 14. This Stipulation is executed by the Respondent for the purpose of avoiding further _ administrative action with respect to this particular case. In this regard. Respondent authorizes the Board to review and examine ail investigative file materials concerning Respondent prior to or in conjunction with consideration of the stipulation. Respondent agrees to support this stipulation at the time eit is S presented to the Board and shall offer no evidence. . testimony, or argument that disputes or contravenes any stipulated fact or conclusion of law. Furthermore, should this Stipulation not be accemted by the Board, it is agreed that the presentation and consideration of ; tis Splat nd other docunens and mates by the Boar stall not unfairly or illegally “prejudice th the Board of any of its members from. further participation, consideration or resolution of these proceedings. Furthermore, in the event that the Board fails to approve this joint Stipulation and a | Proceeding pursuant to Section 120.57, Florida Stanutes, is held, the Stipulation may not be 3 003847 introduced into evidence. Should the hearing result in a finding that Respondent is guilty of the alleged charges, Respondent hereby waives any defense to entry of a Final Order by the Board based upon the Board's consideration of this Stipulation. 15. The Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or Department against the Respondent for acts or omissions not specifically set forth in the Amended Administrative Complaint, attached hereto as Exhibit A, issued in this cause. 16. The Respondent waives the right to seek attorney’s fees and/or costs from the Department or Agency in connection with this disciplinary proceeding. 17. Upon the Board's adoption of this Stipulation, Respondent and Department expressly | waive all further procedural steps, and expressly waive all rights to seek judicial review of or to - otherwise challenge or contest the validity of the joint Stipulation of Facts, Conclusions of Law and imposition of discipline, and the Final Order of the Board incorporating said Stipulation. SIGNED this _[“7_ day of CONSTANTINOS N. SOLDATOS, D.M.D. Swom to and subscribed before r me « this 7 day of in _. 2006. 7 PS me, LYNN S. LEEDHAM 4, MY COMMISSION # CC 751572 ores EXPIRES: 0405/2001 1-900-3-NOTARY Fla Notary Services & Bonding Co. STATE OF FLORIDA _ DEPARTMENT OF HEALTH © DEPARTMENTOF HEALTH, "PETITIONER, vs. . | CASE NUMBER: 94-02880 CONSTANTIONSN. SOLDATOS, D.MD.. RESPONDENT. “ : “7 AMENDED ADMINISTRATIVE COMPLAINT COMES NOW, the Petitioner, Department of Health, hereinafter referred to as “Petitioner”, and files this Administrative Complaint before the Board of Dentistry against CONSTANTIONS N. SOLDATOS, D.M.D., hereinafter referred to as "Respondent"; and alleges: 1. Effective July 1, 1997, Petitioner is the state agency charged with the regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes (Supp. 1996); Chapter 455, Florida, Starutes; and Chapter 466, Florida Statutes. Pursuant to the authority of Section 20.43 @) @, Florida Statutes, the Petitioner has contracted with the Agency of Health Care - Administration to provide consumer complaint, investigative, and prosecutorial services Tequired by the Division of Medical Quality Assurance, councils, or boards, as appropriate. . v ' vl 2. Respondent is, and has been i at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0013314. Respondent's Jast known address is 104 22" Street, Bell Air Beach, Florida 34625. 3. Between November 1993 and ‘December 1993, Medicaid was billed for more ** expensive dental treatment than the treatment provided by Mobile Dental Health to its patients. 003849 ‘2 BERR ON MEE LY ps 4. Between November 1993, and December 1993, the patient records of Mobile Dental” ” Health failed to substantiate the more expensive treatment billed to Medicaid. - S..A former employee and office manager of Mobile Dental Health has admitted to engaging in fraud by preparing paperwork for billing Medicaid for more expensive treatment when less expensive treatment had been rendered. 6. Commission Reports and Transaction Listings indicate that the Respondent received compensation as a result of these fraudulent billings. - , 7. On or about July 2, 1997, the Respondent entered a plea of nolo contendere to two (2) counts of conspiracy to commit Medicaid provider fraud. 8. On or about July 2, 1997, Respondent was placed on probation for twelve (12) months and ordered to reimburse Leon County five thousand dollars ($5,000) in ceurt costs. Respondent was also sentences to sixty (60) days in jail and three G) months of community control. COUNT I 9. Petitioner realleges and incorporated by reference the allegations contained in paragraphs one (1) through eight (8) as if fully stated herein. 10. Based on the foregoing, the Respondent’s license to practice dentistry in the State of Florida i is subject to discipline pursuant to Section 466.028 (1)(t), Florida Stamtes, for engaging in fraud, deceit, and misconduct in the practice of Dentistry. 003850 tT COUNT " 11. Petitioner realleges and incorporated by reference the allegations contained in paragraphs one a) through eight (8) as if fully stated herein. 12. Based on the foregoing, the Respondent’s license to practice dentistry in the Stae of Florida is subject to discipline pursuant to Section 466.028 (1)(c), Florida Stanites, for being convicted or found guilty of or entering a Plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of dentistry. 003851 “d GEEB ON , WYCES€ [08D cptcuay Ce WHEREFORE, Petitioner respectfully requests the Board of Dentistry enter an order © 7” imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate. SIGNED this | N | aay of FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK MA. Come : cy M.*Snurkowski “J Chief Anorney 1998. - Douglas M. Cook, * Director Agency for Health Care - 8 _ Administration . ~ Gi) ONS : egory W. Files Staff Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 (904) 487-2225_ : PCP: F.G. & W.R. DATE: January 24, 1998 003852 “¢ BESG'ON : WYDESR 19G2 “gQc4gy arene
The Issue The amount of attorneys’ fees and costs to be assessed against Respondent, to be paid to Petitioner pursuant to section 120.595(4), Florida Statutes, and the First District Court of Appeal’s Order of Remand.
Findings Of Fact Based on the parties’ Stipulation, the following facts are found: On June 8, 2016, Petitioner filed a Petition to Determine Invalidity of Agency Statements (Petition), pursuant to section 120.56(4), Florida Statutes. In its Petition, Petitioner also sought reasonable trial-level attorneys’ fees and costs under section 120.595.3/ By Final Order dated August 26, 2016, the Administrative Law Judge dismissed the Petition, concluding that the challenged agency statement did not meet the definition of a rule under chapter 120. Grabba-Leaf, LLC v. Dep’t of Bus. & Prof’l Reg., Case No. 16-3160RU (Fla. DOAH Aug. 26, 2016). The Final Order was appealed to the First District Court of Appeal in Grabba-Leaf, LLC v. Department of Business and Professional Regulation, Case No. 1D16-4273. In the appeal, Grabba-Leaf moved for appellate fees and costs pursuant to section 120.595. On November 6, 2018, the First District Court of Appeal reversed the Final Order, and held that the challenged agency statement constitutes an unadopted and unenforceable rule. Grabba-Leaf, LLC. v. Dep’t of Bus. & Prof’l Reg., 257 So. 3d 1205 (Fla. 1st DCA 2018). Also on November 6, 2018, the First District Court of Appeal issued an Order granting Grabba-Leaf’s motion for appellate attorney’s fees and costs under section 120.595, and remanding the matter to the lower tribunal with instructions to assess the amount (Order of Remand). On November 27, 2018, the Mandate issued. The matter is now pending at DOAH on remand from the First District Court of Appeal to assess the amount of appellate attorneys’ fees to Grabba-Leaf, as well as on Petitioner’s request for attorneys’ fees and costs for the administrative hearing, made in its unadopted rule challenge petition. Petitioner’s Motion to Set Attorneys’ Fees and Costs was filed on February 11, 2019. The Motion represented that the parties had been trying to reach a settlement as to both the request for trial-level attorneys’ fees and costs and the appellate attorneys’ fees and costs ordered by the First District Court of Appeal. Grabba-Leaf represented that although it believed that the parties had reached an agreement as to the total amount, the written agreement had not been executed by Respondent. Accordingly, Grabba-Leaf asked that a hearing be held to determine attorneys’ fees and costs for the trial level and the appeal. Attached to the Motion was an affidavit attesting to the attorneys’ fees and costs for both the administrative hearing and the appeal, documented by records attached to the affidavit. The next day, on February 12, 2019, Grabba-Leaf filed Petitioner’s Notice of Withdrawal of Motion to Set Attorneys’ Fees and Costs. Petitioner also filed Petitioner’s Notice of Filing to which the parties’ Stipulation was attached. By the Stipulation, Petitioner and Respondent agree to the entry of a final order assessing the sum of $150,000.00 for attorneys’ fees and costs for both the trial level and appeal, to be paid by the Department to Grabba-Leaf within 60 days of entry of the final order. The agreed amount for fees and costs set forth in the Stipulation is generally consistent with the affidavit and records attached to Petitioner’s Motion to Set Attorneys’ Fees and Costs (later withdrawn), albeit in the context of a compromise by both parties to avoid the expense and risk associated with litigating the attorneys’ fees and costs matter.
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
Findings Of Fact The material facts alleged in the Petition are accepted as true for purposes of ruling on the Motion and are summarized here: The Department was directed by section 381.986 to authorize the establishment of five DOs statewide, one each in five different regions. The Department promulgated an application form, incorporated by reference in Florida Administrative Code Rule 64-4.002, to be used by applicants seeking approval as one of the five regional DOs. The Department conducted its application review process pursuant to rule 64-4.002(5), which provides for three reviewers to independently review and score each application using a scorecard form that is incorporated by reference. Pursuant to rule 64-4.002(5)(b), “[s]corecards from each reviewer will be combined to generate an aggregate score for each application. The Applicant with the highest aggregate score in each dispensing region shall be selected as the region’s Dispensing Organization.” McCrory’s timely submitted an application to become the DO in the central Florida region, as did a number of others, including Knox. According to McCrory’s, the scorecards completed by the Department’s reviewers for the central region applications reveal “clearly erroneously assigned scores, and scores that were assigned in an arbitrary and capricious manner.” (Petition at 4). According to McCrory’s, “[c]orrection of the clearly erroneous scoring errors would result in McCrory’s being the highest scoring Applicant in the Central Region, and [the Department] would have been required to select McCrory’s as the DO for the Central Region.” (Petition at 4). McCrory’s seeks a formal evidentiary hearing to prove its allegations of scoring errors because by doing so, McCrory’s contends it would thereby be entitled to be a central region DO by legislative decree. The Petition is predicated on section 3, subsection (1) of the new law, which provides: Notwithstanding s. 381.986(5)(b), Florida Statutes, a dispensing organization that receives notice from the Department of Health that it is approved as a region’s dispensing organization, posts a $5 million performance bond in compliance with rule 64-4.002(5)(e), Florida Administrative Code, meets the requirements of and requests cultivation authorization pursuant to rule 64-4.005(2), Florida Administrative Code, and expends at least $100,000 to fulfill its legal obligations as a dispensing organization; or any applicant that received the highest aggregate score through the department’s evaluation process, notwithstanding any prior determination by the department that the applicant failed to meet the requirements of s. 381.986, Florida Statutes, must be granted cultivation authorization by the department and is approved to operate as a dispensing organization for the full term of its original approval and all subsequent renewals pursuant to s. 381.986, Florida Statutes. Any applicant that qualifies under this subsection which has not previously been approved as a dispensing organization by the department must be given approval as a dispensing organization by the department within 10 days after the effective date of this act, and within 10 days after receiving such approval must comply with the bond requirement in rule 64-4.002(5)(e), Florida Administrative Code, and must comply with all other applicable requirements of chapter 64- 4, Florida Administrative Code. (emphasis added). The Petition asserts that McCrory’s would, if allowed to prove its allegations of scoring errors, achieve the status described in the emphasized language following the semi-colon.1/ The language McCrory’s seeks to invoke identifies attributes of an applicant in a two-part description. The first part of the description is “any applicant that received the highest aggregate score through the department’s evaluation process.” The second part of the description is “[n]otwithstanding any prior determination by the department that the applicant failed to meet the requirements of s. 381.986, Florida Statutes.” McCrory’s has not alleged that it was an applicant that received the highest aggregate score through the Department’s evaluation process, nor has McCrory’s alleged that the Department previously determined that McCrory’s failed to meet the requirements of section 381.986, Florida Statutes. Instead, McCrory’s admits by its allegations that it was not the applicant that received the highest aggregate score among the central region DO applicants, through the Department’s evaluation process. McCrory’s instead alleges that its application did not receive the highest aggregate score because of scoring errors characterized as clearly erroneous or arbitrary and capricious. McCrory’s can only allege that correction of the scoring errors “would result in McCrory’s being the highest scoring Applicant in the central region.”2/ McCrory’s also cannot allege that it meets the second part of the two-part description after the semi-colon. McCrory’s acknowledges by its allegations that its application was denied because it did not receive the highest aggregate score in the central region, not because it did not satisfy one of the statutory requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petition for Formal Administrative Proceedings filed by Petitioner McCrory’s Sunny Hill Nurseries, LLC, with prejudice. DONE AND ENTERED this 3rd day of June, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2016.
The Issue The issue is whether Respondent, Florida Commission on Human Relations (FCHR), should pay Petitioners' attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Case No. 12-2074.
Findings Of Fact On August 15, 2011, John and Kimberly Whitt (Whitts) filed a complaint of housing discrimination with the United States Department of Housing and Urban Development alleging disability discrimination. FCHR conducted an investigation of the complaint. During the investigation, the investigator obtained statements and documents from both parties. The investigator's final investigative report (Determination, found within Respondent's Exhibit 1) detailed the investigation. The Determination dated December 21, 2011, concluded that "there [was] reasonable cause to believe that a discriminatory housing practice occurred in violation of 804(f)(3)(A) of the Fair Housing Act, as amended." On March 2, 2012, FCHR issued a Legal Concurrence: Cause. The Legal Concurrence, drafted by FCHR's senior attorney, concluded that "there [was] reasonable cause to believe that Respondents [Association] discriminated against Complainants [the Whitts] in violation of 42 U.S.C. §§ 3604(b) and (f)(2)(A) and section 760.23(2) and (8)(a), Florida Statutes." On March 5, 2012, FCHR's executive director executed the Notice of Determination (Cause), charging that there was reasonable cause to believe that the Association had engaged in a discriminatory housing practice. The Whitts elected to have FCHR represent them to seek relief in an administrative proceeding against the Association. On June 14, 2012, FCHR filed a Petition for Relief (Relief Petition) with DOAH seeking an order prohibiting the Association from engaging in any unlawful housing practices, and granting damages. The final hearing in the underlying case was held before the undersigned on December 12, 2012. The undersigned entered a Recommended Order on February 15, 2013, recommending the dismissal of the Relief Petition filed on behalf of the Whitts. On May 2, 2013, FCHR entered a Final Order dismissing the petition for relief filed on behalf of the Whitts. The Association was the prevailing party in the underlying case. The Association is a not-for-profit corporation that does not have any employees. The Association relies solely on volunteers to run its operations. It has never had a net worth of two million dollars or more. The Association was represented by counsel and co- counsel in both proceedings. In the Fees Petition, the Association alleged it had incurred $75,657.00 in legal fees. At hearing, the Association provided a document which reflected that $5,945.00 in fees should not have been attributed to the instant case, thus setting the amount the Association was seeking at $69,712.00. However, the Association acknowledged that section 57.111(4)(d) 2., Florida Statutes, limited the recovery of attorney's fees and costs to $50,000. FCHR is a "state agency" for the purposes of this proceeding. See §§ 120.57(1) and 57.111(3)(f), Fla. Stat.
