The Issue The issues to be resolved in this proceeding concern whether the Petitioner's rights and benefits under the Florida Retirement System (FRS), should be forfeited for the reasons alleged in the Notice of Forfeiture of Retirement Benefits dated March 12, 2007.
Findings Of Fact The Division of Retirement (Division) is an Agency of the State of Florida charged with the responsibility of managing, governing and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. The FRS is a public retirement system as defined in Florida law. It provides benefits to local and state employees, including teachers, state legislators, local public officials, and public employees employed by local or state agencies which are members of the FRS. The Petitioner, Russell S. Lawler, was employed as a state employee by the Department of Health from August 1983 until he resigned his position in January 2004. Because he was employed by the Department of Health, the Petitioner became a participant in the FRS public retirement system as of August 1983. His benefits in the FRS became vested after 10 years, or in August 1993. On March 12, 2007, the Respondent Agency sent the Petitioner a Notice of Action to Forfeit Retirement benefits, in evidence as Respondent's exhibit six. The Division thus advised the Petitioner that it was proceeding under Section 112.3173(3), Florida Statutes, which provides that a public employee who is convicted of specified offenses committed prior to retirement, or who is terminated by reason of admitted commission, aid, or abetment of a specified offense, will forfeit all rights and benefits under the FRS. The Notice went on to list the six specified offenses in Section 112.3173(2)(e), Florida Statutes, which provide for the forfeiture of retirement benefits. The specified offenses include the committing, aiding, or abetting of embezzlement of public funds; of theft by a public officer or employee from his or her employer; bribery in connection with public employment; any felony specified in Chapter 838, except Sections 838.15 and 838.16, Florida Statutes; the committing of an impeachable offense, or The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempt to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position. Ultimately, through the testimony of the Respondent's sole witness, Mr. Gaines and through Respondent's concession in its Proposed Recommended Order, the Division elected to proceed against the Petitioner solely under Section 112.3173(2)(e)6., Florida Statutes, the above-quoted statutory provision, which is the so-called "catch all" provision. After receiving this Notice from the Division the Petitioner submitted a timely Petition challenging the forfeiture of his retirement benefits on April 2, 2007. On April 26, 2007, the Petitioner submitted an Amended Petition to the Division, which was ultimately referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge, who conducted the hearing on the above date. The Respondent Division, in essence, maintains that the Petitioner, who was employed as a pharmacist by the Department of Health, stole certain controlled substances or drugs from the Department of Health pharmacy where he was employed, and was convicted of illegal possession of controlled substances. It contends that such conduct constitutes violation of paragraph six of the above-quoted statutory provision, is the commission of a felony violative of that provision, and that forfeiture of his retirement benefits is appropriate. At the hearing the Respondent sought to introduce the following documents into evidence: the arrest and booking report dated December 31, 2003, (Respondent's Exhibit one); the state attorney's information dated January 16, 2004, as Respondent's Exhibit two; the plea of guilty entered by the Petitioner in that underlying criminal case, and the negotiated sentence, which is one document, dated March 14, 2004, as Respondent's Exhibit three; the Judgment of Conviction dated March 15, 2004, as Exhibit four and the related Judgment and Restitution Order of April 5, 2004, as Respondent's exhibit five. The Respondent was not the custodian of the records for the Respondent's Exhibits one, two, three, four, and five, which were obtained from the Clerk of Circuit Court in and for Duval County, Florida, and not from the Respondent's own maintained records. No foundation was laid for their admission under the business records exception to the hearsay rule, because no witness was called who could lay such a foundation. Moreover, they were clearly and admittedly acquired by the Respondent Division solely for the purpose of pursuing the forfeiture action against the Petitioner, the instant litigation. They were not shown to be business records maintained in the regular course of business by an appropriate foundation witness. They are also proffered as being admissible within the public records exception to the hearsay rule contained in Section 90.803(4), Florida Statutes, and as party admissions and, for that reason, admissible over hearsay objection. The admissibility issues are dealt with in the Preliminary Statement and in the Conclusions of Law below. Respondent's Exhibits one and two are inadmissible for the reasons delineated herein. Respondent's Exhibits three, four, and five have limited admissibility. Exhibit three, the Plea of Guilty and Negotiated Sentence is admissible as a party admission. The Judgment of Conviction, Respondent's Exhibit four, and the related Judgment and Restitution Order, Respondent's Exhibit five, are deemed, under Florida law, to be inadmissible under the public records exception to the hearsay rule contained in Section 90.803(4), Florida Statutes. They are not admissible to show the underlying facts upon which they are based or rendered. As judgments they have specific limited statutory admissibility under Section 92.05, Florida Statutes, merely to show that they were entered and they are valid. There is also limited authority to the effect that the Judgment of Conviction, to the extent that it is based upon the Guilty Plea, and therefore subsumes it, presumably can be admitted as a party admission. Since the guilty plea in the underlying criminal case related to this proceeding has been admitted as a party admission, such in this case is a distinction without any evidential or legal difference. The Respondent also proffered into evidence the deposition transcript of Deputy Chris Lavalley who is an officer of the Duval County Sheriff's Office. The deposition was noticed on July 19, 2007, with the deposition to be conducted (which it was) on August 13, 2007. The notice advised the Petitioner that the deposition was being taken for purposes of discovery, for use at trial, or for any other purpose for which it may be used under the applicable laws of Florida. On July 23, 2007, the Respondent noticed its serving of Answers to the Petitioner's Interrogatories in which the Respondent did not list Deputy Lavalley as a witness in that discovery response. During the deposition and thereafter the Respondent never notified the Petitioner's counsel that Detective Lavalley would not be called or available as a witness at the hearing, which was scheduled for August 22, 2007. Detective Lavalley was the author of the arrest and booking report contained in Respondent's exhibit one and was the arresting officer in the underlying criminal proceeding related to this forfeiture proceeding. The Respondent and Respondent's counsel made no showing before, during, or after the hearing in this case that Detective Lavalley was an unavailable witness as a predicate to an attempted introduction of Detective Lavalley's deposition (Respondent's Exhibit seven). The record reflects that Detective Lavalley is, or was, at times pertinent, an officer of the Duval County Sheriff's Office and this hearing was conducted in Jacksonville, in Duval County, Florida. There was no showing that he was beyond 100 miles from the hearing site or any other reason why he would be an unavailable witness. 12. The Respondent presented as its sole witness Mr. Ira Gaines, a benefits administrator in the Division's Bureau of Benefits Calculation. Mr. Gaines had no personal knowledge or competency to testify concerning any facts underlying the acts for which the Petitioner received the felony conviction at issue. He was not the custodian of the records of the Duval County Clerk or Circuit Court. He did establish he validly had access to the Division's own records in the pursuit of his regular duties and business for the Division and his bureau. He thus was able to establish that the name of the Petitioner and the Petitioner's Social Security number in the records of the Division, of which he had direct knowledge and access to, were the same as those depicted on the Respondent's exhibits. It was thus established that the defendant in the underlying criminal proceeding at issue is the same Russell S. Lawler as the Petitioner in this case, who is subject to this forfeiture proceeding. Mr. Gaines testified that in order for a retiree's benefits to be subject to forfeiture, that the retiree must be convicted of "a felony that related with the employment of that employer . . ." He also established, as the Respondent has conceded, that Section 112.3173(2)(e)6., Florida Statutes, is the specific and only offense for which forfeiture of the Petitioner's retirement benefits is sought in this proceeding. The Petitioner pled guilty to possession, actual or constructive, of a controlled substance (codeine) and is shown by the related judgment of conviction to be convicted of a third- degree felony in violation of Section 893.13(6)(a), Florida Statutes. Exhibit four shows that he was adjudicated guilty of such. The plea of guilty and negotiated sentence contained in Respondent's Exhibit three also shows that the court was to reserve jurisdiction for restitution. Respondent's Exhibit five, the Judgment and Restitution Order, shows restitution in the amount of $860.00 was to be made to the Department of Health and the Victim Compensation Trust Fund of the Office of the Attorney General. The above findings are all that the Respondent's evidence shows concerning the felony of which the Petitioner was convicted. The Respondent did not adduce any substantial, persuasive evidence or witnesses concerning the nature of the Petitioner's duties at the Department of Health or how those duties had any relationship to the crime the Respondent alleges to be the basis for the forfeiture action herein. The above admissible evidence does not show, for instance, where the Petitioner obtained the illegal controlled substances, possession of which, actual or constructive, he was convicted of, nor is there preponderant, persuasive evidence to show that, even though the order in exhibit five requires restitution to the Department of Health, what the restitution was for or for what purpose it was to be made. To presume more facts than shown on the face of that order would be speculation, and would not be based on admissible evidence. It could be for a number of reasons, such as to pay investigative costs to the Department of Health, or for other reasons, since it was based on a negotiated plea and restitution. Even if Exhibit five could be deemed to show that the Department of Health was a victim of a crime committed by the Petitioner, there was no preponderant, persuasive evidence by which it might be found that the Petitioner actually deprived his employer of anything of value, or acted at any time with the intent to defraud his employer, the public, and the Department of Health of the right to receive the faithful performance of his duties as a public officer or employee. There was no preponderant, persuasive evidence to show that the Petitioner realized, obtained, or attempted to realize or obtain a profit, gain, or advantage for himself or for some other person, by the use or attempted use of the power, rights, privileges, duties, or position of his public office or employment position. There was simply no evidence adduced to show what his duties were or to show how the function of his duties or his employment position might have a relationship to the crime for which he pled guilty and was convicted. Thus, there is no preponderant, persuasive, admissible evidence which is competent to show that a specified offense, as contemplated in Section 112.3173(2)(e)1-6, Florida Statutes, was committed. The Petitioner has filed a Motion for Attorney's Fees pursuant to Section 57.105, Florida Statutes, and provided the Respondent notice of his intent to seek attorney's fees under that section.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, finding that the Petitioner's retirement benefits should not be forfeited and that all such benefits be restored. DONE AND ENTERED this 30th day of January, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 30th day of January, 2008.
The Issue The Administrative Complaint in Case No. 90-7826 alleges violations of Chapter 464, Florida Statutes, governing the professional practice of nursing, when Respondent is alleged to have left a medication vial, syringe and needle in a place accessible to patients, in an alcohol and drug detoxification facility in Cocoa Beach, Florida. The Administrative Complaint in Case No. 91-7581 alleges that Respondent is unable to practice nursing with reasonable skill and safety to patients, by reason of illness, or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition, as provided in Section 464.018(1)(j), Florida Statutes. The issues initially submitted for disposition were whether those allegations are true, and if so, what discipline or action regarding Respondent's license should be taken. As discussed below, the parties have resolved the issues with a stipulation.
Findings Of Fact The following constitute the parties' stipulated findings of fact. Ms. Beecher is a licensed nurse in the State of Florida, holding license number RN 1238832 and, therefore, is subject to the jurisdiction of the Department and the Board of Nursing. Ms. Beecher was placed on probation for a period of one year as a result of disciplinary action filed in Department of Professional Regulation Case No. 90740. A term of the probation was that Ms. Beecher obtain and continue in counseling for the term of the probation, and thereafter until discharged. During the probationary period, Ms. Beecher received counseling from Marianne Jones, R.N., L.C.S.W., C.A.P. Ms. Beecher caused Ms. Jones to submit a probation report to the Board of Nursing in August 1990. Ms. Jones indicated that Ms. Beecher was not capable of safely engaging in the practice of nursing because of Ms. Beecher's mental illness and her lack of cooperation with her treatment program. Ms. Beecher appeared at the Board of Nursing meeting on October 12, 1990, at which time the Board members and staff were concerned about her erratic and irrational behavior. Ms. Beecher was examined in or around August and September, 1991 by Dr. Burton Podnos, M.D., a psychiatrist, who opined that Ms. Beecher was schizophrenic and, therefore, that she was not capable of safely engaging in the practice of nursing.
Recommendation Based on the foregoing, the parties have stipulated to the following recommended disposition: that a final order be entered suspending the nursing license of Linda Krasnay Beecher until such time as she is able to demonstrate that she is capable of safely engaging in the practice of nursing, and requiring that she enroll in the Intervention Program for Nurses (IPN) and complete their program for mentally impaired nurses. The final order should also reflect dismissal of the complaint in Case No. 90-7826. DONE and ENTERED this 4th day of March, 1992, in Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1992. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Lois Lepp, Esquire Department of Professional Regulation 1940 N Monroe Street Suite 60 Tallahassee, Florida 32399-0792 David Young, Esquire 1227 S. Florida Avenue Rockledge, Florida 32955
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual, 2004 Second Edition, is an invalid exercise of delegated legislative authority. PRELIMINARY STATEMNET On February 21, 2008, Petitioner filed a Petition for Formal Administrative Hearing with the Agency for Health Care Administration (AHCA). The petition requests a hearing on the determination issued by AHCA in a reimbursement dispute involving Petitioner under Section 440.13, Florida Statutes.1/ The petition also includes a "rule challenge" under Section 120.56, Florida Statutes, in which Petitioner alleges that Section 11B(3)2/ of the Florida Workers' Compensation Reimbursement Manual, 2004 Second Edition ("the 2004 Manual"), is an invalid exercise of delegated legislative authority. The "affected agencies" identified in the petition are AHCA and the Department of Financial Services (Department). The Department is identified because it promulgated Florida Administrative Code Rule 69L-7.501, which according to the petition, incorporates by reference the 2004 Manual. On February 27, 2008, AHCA referred the petition to the Division of Administrative Hearings (DOAH). The DOAH Clerk established two cases based upon the petition--DOAH Case No. 08-1058, which is the reimbursement dispute, and DOAH Case No. 08-1060RX, which is the rule challenge. AHCA is designated as the Respondent in the reimbursement dispute, and the Department is designated as the Respondent in the rule challenge. On February 28, 2008, the Department filed a motion to dismiss the rule challenge for lack of subject matter jurisdiction because the 2004 Manual is no longer adopted by reference in Florida Administrative Code Rule 69L-7.501. Petitioner did not file a response to the motion within the time allowed by Florida Administrative Code Rule 28-106.204(1). No hearing is necessary to rule on the jurisdictional issue raised in the motion.
Findings Of Fact The 2004 Manual is no longer adopted by reference in Florida Administrative Code Rule 69L-7.501 or any other rule. Florida Administrative Code Rule 69L-7.501(1) was amended, effective October 1, 2007, to incorporate the 2006 version of the Florida Workers' Compensation Reimbursement Manual. The amendment deleted the Rule's reference to the 2004 Manual. AHCA applied the 2004 Manual in the reimbursement dispute involving Petitioner, which is pending as DOAH Case No. 08-1058.
The Issue Whether Rules 3E-600.013(1)(f), 3E-(300.013(1)(p) and 3E-600.013(2)(g), Florida Administrative Code are invalid exercises of delegated legislative authority.
Findings Of Fact Respondent is the state agency charged with the administration and enforcement of Chapter 517 Florida Statutes, which is referred to as the Florida Securities and Investor Protection Act. Rulemaking authority is conferred on Respondent by the provisions of Section 517.03, Florida Statutes. Pursuant to its rulemaking authority, Respondent filed documents on November 15, 1979, with the Florida Secretary of State to adopt the challenged paragraphs as part of Rule 3E- 600.13, Florida Administrative Code. This rule became effective on December 5, 1979, and was subsequently renumbered as 3E- 600.013, Florida Administrative Code. The summary of the public hearing held by the Respondent on November 7, 1979, as part of the rulemaking process makes no mention of the specific provisions at issue here. Section 517.l61(1)(h), Florida Statutes, provides, in pertinent part, as follows: Registration under S. 517.12 may be denied or any registration granted may be revoked, restricted, or suspended by the department if the department determines that such applicant or registrant: * * * (h) Has demonstrated his unworthiness to transact the business of dealer, investment adviser, or associated person; Rule 3E-600.013, Florida Administrative Code, provides, in pertinent part, as follows: The following are deemed demonstrations of unworthiness by a dealer under Section 517.161(1)(h), Florida Statutes, without limiting that term to the practices specified herein: * * * (f) Extending, arranging for, or participating in arranging for credit to a customer in violation of the Securities Exchange Act of 1934 or the regulations of the Federal Reserve Board; * * * Violating any rule of a national securities exchange or national securities association of which it is a member with respect to any customer, transaction or business in this state: * * * The following are deemed demonstrations of unworthiness by an agent under Section 517.161(1)(h), Florida Statutes, without limiting that term to the practices specified herein: * * * Engaging in any of the practices specified in subsections (1) ... (f)... (p) ... Thomas James Associates, Inc. is a securities dealer as defined in Section 517.021(9)(a)1., Florida Statutes, and is registered with Respondent. Section 517.12(16), Florida Statutes, requires securities dealers to be registered as a broker or dealer with the Securities and Exchange Commission. The other Petitioners are or were associated persons of Thomas James Associates, Inc. within the meaning of Section 517.021(4), Florida Statutes. Each Petitioner has been charged in a pending disciplinary proceeding with having demonstrated his unworthiness to transact business in the State of Florida by having committed one or more violations of the foregoing rules either as a dealer or as an agent. More specifically, Respondent's charge of unworthiness to transact business in the State of Florida is based on the allegations that Petitioners have violated certain Rules of Fair Practice of the National Association of Securities Dealers (NASD), the rules of the Securities and Exchange Commission (SEC), the Securities and Exchange Act of 1934, and the rules of the Federal Reserve Board. Section 517.161(6), Florida Statutes, gives the Respondent the authority to deny an application for registration or to suspend or restrict any registration granted pursuant to Section 517.12, Florida Statutes, if the applicant or registrant is charged in a pending enforcement action, including any proceeding brought by the SEC or NASD, with any conduct that would authorize denial or revocation under Section 517.161(1), Florida Statutes. None of the challenged provisions of Rule 3E-600.013, Florida Administrative Code, have been amended since originally adopted in 1979. None of the statutes, regulations or rules referred to in Rules 3E-600.013(1)(f),(p), Florida Administrative Code, have been filed with the Department of State, with the following exception. On August 30, 1982, Respondent filed with the Department of State certain rules of the Securities and Exchange Commission and of the Municipal Securities Rulemaking Board. Respondent has not prepared or filed with the Department of State any other certification describing this referenced material and specifying other rules to which the referenced material applies. Some of the rules which are incorporated by reference by Rule 3E- 600.013(1)(p), Florida Administrative Code, have been changed since its adoption in 1979 by Respondent. Respondent does not maintain a copy of all rules that are incorporated by reference either in the form as they existed in 1979 or as subsequently amended. Respondent has taken no action to amend its rules to reflect changes that may be made from time to time in rules that have been incorporated by reference. Petitioners are members of NASD who have voluntarily agreed to comply with the rules of NASD as they are or may from time to time be adopted, changed, or amended by NASD. Petitioners are likewise required to comply with the rules of the SEC, the Securities and Exchange Act of 1934, and the rules of the Federal Reserve Board as those rules or laws are or may from time to time be adopted, changed or amended. Respondent makes its own factual determination as to whether an applicant or registrant has demonstrated its unworthiness by violating rules proscribed by Rules 3E-600.013(1)(f) and (p) and 3E600.0l3(2)(q), Florida Administrative Code. Respondent does not wait to bring disciplinary action against a registrant or applicant until there has been a formal and final determination by a national securities exchange or by a national securities association that a violation of its rules has occurred. For example, Respondent does not wait for NASD to bring disciplinary action against an applicant or a registrant if Respondent has determined on its own that the applicant or registrant has violated NASD rules.
The Issue Whether Petitioner's claim for refund under Chapter 210, Florida Statutes, pursuant to Section 215.26, Florida Statutes, should be approved. The Petition herein was originally filed solely against the Comptroller of the State of Florida. Thereafter, pursuant to nation of the Respondent for a more definite statement, an amended petition was filed on July 27, 1979. Subsequently, pursuant to stipulation, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco was joined as a party respondent. This case was consolidated for purposes of hearing with the case of Eli Witt Company, as successor to Havatampa Corporation, Petitioner, v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Respondent, Case No. 79-1984R. The said petition alleged the invalidity of the Division of Alcoholic Beverages and Tobacco's Rule 7A- 10.25, Florida Administrative Code. A Final Order in that case has been issued on this date.
Findings Of Fact Petitioner Eli Witt Company is a wholesale dealer in cigarettes in some eight states, including Florida. During the year 1976 and at the present time, Petitioner acts under the authorization of the Division of Alcoholic Beverages and Tobacco as an agent to buy or affix tax stamps pursuant to Section 210.05, Florida Statutes, and to collect and remit cigarette tax to the Division after sale to various retailers in the State. Petitioner has some twenty-five branch offices located throughout the State who place orders for cigarettes with Petitioner on a daily basis. The cigarettes are invoiced by Petitioner to each branch and, upon arrival, the various branch offices affix the tax stamps upon the cigarette packages, primarily by means of a stamping machine. Each of Petitioner's stamping offices maintains its own records and files required reports, and are audited Individually by employees of the Division. Each branch office is listed separately on a rider to the surety bond of Petitioner which is required under Chapter 210. Monthly checks are signed by each branch manager to remit tax collected to the Division. (Testimony of Hoyland) Since at least 1962, Petitioner had stamped cigarettes and collected cigarette taxes for the State of Florida. It had been allowed a discount as compensation for its services and expenses pursuant to Section 210.05(3)(a), Florida Statutes, of 2.9 percent on the first two million cigarette packs stamped at each of its stamping locations. On March 1, 1976, the Division promulgated Rule 7A-10.25, Florida Administrative Code, which provided that a wholesaler who stamps cigarettes at more than one location would only be entitled to receive the maximum discount for a single agent doing business at a single location. Accordingly, although each of Petitioner's twenty-five stamping locations purchased more than two million stamps from the Division during the fiscal year July 1, 1976 through June 30, 1977, Petitioner retained the 2.9 percent discount as if it had done business at only one location. It filed a protest against the effect of the rule with the Division on July 1, 1976. A refund claim was filed with the State Comptroller on March 16, 1979, and denied on June 12, 1979. (Testimony of Hoyland, case pleadings, Exhibits 2-3, 5) In 1977, the state legislature enacted Chapter 77-421, Laws of Florida, effective June 29, 1977, which provided in part in Section B thereof that: "Stamping locations approved by the division shall be responsible for computing the discount provided for each aid every stamping location by ss. 210.05(3)(a), Florida Statutes . . ." The Division thereafter permitted discounts under the policy in effect prior to the promulgation of Rule 7A-10.25, but did net repeal the rule. On March 16, 1979, Petitioner requested the State Comptroller to refund the $64,900 paid under protest in fiscal year 1976-77 which represented the amount it could have retained as a discount if Rule 7A-10.25 had not been in effect. (Case pleadings, Exhibits 1, 4)
Recommendation That the Comptroller, State of Florida, deny Petitioner's claim for refund. DONE and ENTERED this 14th day of November, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: E. Wilson Crump, II Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Harold F.X. Purnell General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304
Recommendation In light of the foregoing, it is hereby RECOMMENDED that the Department issue a final order dismissing Petitioner’s amended petition on the grounds that Petitioner lacks standing to administratively challenge the Department’s decision not to disapprove Hensler’s proposed appointment to Sunniland’s board of directors and that the Department, having failed to act within the time frame prescribed by Rule 3C-100.0385, Florida Administrative Code, does not have the authority to reconsider its decision and issue a letter of disapproval, as requested by Petitioner.16 DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 1997
Findings Of Fact In recommending that the Public Employees Relations Commission uphold HRS' demotion of petitioner Linda Cook Allen, PERC Hearing Officer Rix wrote: In the instant case, HRS demoted Allen without conducting a special performance appraisal as required by rule 22A-9.009. Rather, Allen was demoted pursuant to HRS Regulation No. 60-10 Section 5(a)(2). This section provides that: As related to this regulation, an employee shall not be demoted as a form of disciplinary action. Rather, this type of action may be used to remove an employee from his class when the employee fails to perform his assigned duties at a satisfactory level. There must be specific documented reasons for such demotion supported by employee performance appraisals and/or documented counseling sessions. See (Exhibit A-10). In short, Powell evaluated Allen's performance over a nine- week period and then initiated action to demote Allen because Powell perceived that Allen was not carrying out her job duties competently. The evidence demonstrates that Powell conducted several counselling sessions with Allen over the nine-week period, which Powell documented pursuant to the above-cited regulation. Recommended Order, page 11. Adopting the Recommended Order, PERC upheld petitioner's demotion from pay grade 19 to pay grade 15, on account of numerous performance deficiencies. The letter HRS sent Ms. Allen notifying her of her demotion made no mention of HRS Regulation No. 60-10. HRS does not have any policy or general practice to rely on "documented counseling sessions" in lieu of employee evaluations before demotions. On September 17, 1990, HRS had in fact prepared a written employee appraisal detailing petitioner's derelictions as a protective investigator, HRS Exhibit No. 3, but petitioner prevailed on a grievance she pursued in connection with the evaluation.
Recommendation It is, accordingly, ORDERED: The petition for administrative determination of rule by hearing officer is denied. DONE and ENTERED this 26th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1992. APPENDIX Petitioner's proposed finding of fact No. 1 was neither established nor refuted. Petitioner's proposed findings of fact Nos. 2 through 7 and 11 through 15 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 8, 9 and 10 are properly conclusions of law. Petitioner's proposed findings of fact Nos. 16, 17 and 18 pertain to subordinate matters. COPIES FURNISHED: James C. McCarty, Esquire P.O. Box 2883 Gainesville, FL 32602 Robert L. Powell, Sr., Esquire Department of Health and Rehabilitative Services 407 Building One 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue What is the amount of reasonable attorney's fees and costs incurred by Steven B. Feren and the City of Sunrise in connection with the appeal in The Fourth District Court of Appeal Case Number 94-03008, including services rendered in connection with motions for rehearing.
Findings Of Fact On October 18, 1995, The District Court of Appeal, Fourth District, entered an order granting Petitioners, City of Sunrise and Steven B. Feren's, motion for attorney's fees in Case No. 94-03008. A scrivener's error in the order was corrected by order dated November 9, 1995. The corrected order stated: ORDERED that the motion for attorney's fees filed by Stuart Michelson, counsel for appellees, is hereby granted, and pursuant to Fla. R. App. P. 9.400(b), upon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Fla. R. App. P. 9.400(c). If a motion for rehearing is filed in this court, then services rendered in connection therewith, including but not limited to preparation of a responsive pleading, shall be taken into account in computing the amount of the fee; . . . . Attorney Samuel Goren (Goren) was retained by the Petitioners to testify at the final hearing on the reasonable amount of attorney's fees incurred by Petitioners. Without objection, Goren was qualified and accepted as an expert on the subject of determining reasonable attorney's fees. Prior to rendering an opinion on the reasonable amount of attorney's fees incurred by Petitioners, Goren reviewed the following documents relating to these proceedings: two volumes of pleadings, Stuart Michelson's correspondence file, unfinished drafts of Stuart Michelson's brief, and eight statements from Stuart Michelson (Michelson) for legal services rendered. Goren is familiar with the case of Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Florida Bar Rule 4-1.5. Goren also interviewed Michelson regarding the work he performed. Based on the foregoing, Goren rendered an opinion on the reasonable hourly rate and the reasonable numbers of hours for the work performed and, consequently, a reasonable legal fee for the services rendered. Michelson charged an hourly rate of $125.00 for his services and $40.00 for the services of paralegals. Goren opined that based on Michelson's skill, experience and reputation, that the hourly rates for attorney's services were very reasonable for the community. Additionally, Goren opined that the rate of $40.00 per hour for paralegal services was also reasonable for the community. I hereby find that the hourly rate of $125.00 for Michelson's services and the hourly rate of $40.00 for the services of a paralegal are reasonable. The services of the Michelson law firm relating to the appeal to the Fourth District Court of Appeal and the motion for rehearing were performed from October 17, 1994, through November 13, 1995. The reasonable amount of attorney hours for the appeal of the final order of the Ethics Commission to the Fourth District Court of Appeal, including services in connection with Colon's motion for rehearing is 88.2. At $125.00 per hour, this amounts to a reasonable fee of $11,025.00. The reasonable amount of paralegal hours for the appeal of the final order of the Ethics Commission to the Fourth District Court of Appeal, including services in connection with Colon's motion for rehearing is 15.45. At $40.00 per hour, this amounts to a reasonable fee of $618.00. The services of the Michelson law firm relating to the determination of the amount of the fees was performed from December 18, 1995 through the date of the final hearing. In addition there will be additional time which will be necessary to bring the proceeding to a Final Order. Michelson submitted invoices to Petitioners dated February 9, 1996 and May 16, 1996. A review of the invoices indicates that some of the services provided did not relate to the fee hearing but to other matters including a lien. Based on the invoices the following dates appear to be for services related to the fee hearing: December 18, 19, 21, and 30, 1995; January 10, 18, 19, and 25, 1996; May 6, 7, 10, 11, 14, 15, and 16, 1996; and May 8 and 9, 1996, excluding lien services. Based on these invoices the reasonable amount of attorney hours for the determination of the amount of fees through May 16, 1996 was 12.5, which equates to $1,562.50. Goren opined that an additional 20 to 25 attorney hours will be needed to bring this case to final conclusion with a final order being entered by the Ethics Commission. A reasonable number of attorney hours necessary to bring this case to final conclusion from the date of the final hearing to the entry of a final order by the Ethics Commission is 25 hours and a reasonable rate for the attorney's time is $125 per hour. The reasonable amount of fees that would be incurred from the final hearing to the entry of a final order by the Ethics Commission is $3,125.00 The attorney and paralegal services and costs contained in the December 8, 1995, statement from the Michelson law firm deal with a petition for certiorari and are not within the scope of the order by the Fourth District Court of Appeal. The amount of reasonable costs incurred by Petitioners in this proceeding and the appeal to the Fourth District Court of Appeal is $896.70. Goren charged the Petitioners $350 for services as an expert witness in connection with these proceedings from October, 1995 through April 30, 1996. Goren spent an additional 9.7 hours on this matter through the final hearing. Goren's hourly rate of $125 is reasonable. The number of hours spent by Goren is reasonable. Goren's fee of $1,562.50 is a reasonable fee for an expert witness in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be entered awarding Petitioners, Steven B. Feren and the City of Sunrise $18,789.70 for reasonable attorney's fees and costs. DONE AND ENTERED this 29th day of May, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-6181FE To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-6: Rejected as not supported by the evidence. Paragraphs 7-8: Accepted. Respondent's Proposed Findings of Fact. The Respondent's Recommended Order did not contain findings of fact. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Mr. Bill Colon 11640 Northwest 30th Place Sunrise, Florida 33323 Carrie Stillman, Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
