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 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); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
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 Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
The Issue Whether the Petitioner is entitled to fees and costs pursuant to Section 120.595(4), Florida Statutes.
Findings Of Fact The Respondent is the state agency responsible for licensing and regulating skilled nursing homes in Florida pursuant to Chapter 400, Florida Statutes. At all times material to the underlying case, the Petitioner operated or controlled three licensed skilled nursing facilities: Harborside Healthcare-Pinewood, Harborside Healthcare-Sarasota, and Harborside Healthcare-Naples. In October of 2001, the Agency filed Administrative Complaints against the Petitioner's three facilities. As to each complaint the Agency relied upon its interpretation of Section 400.121(3)(d), Florida Statutes. The Agency's interpretation of the statute went beyond the plain and unambiguous language of the law. Moreover, such interpretation had not been promulgated by rule. If the interpretation was intended to be the policy of the Agency, the implementation of the policy was not authorized by the statute. The Petitioner pursued three legal strategies: it filed an injunction proceeding in circuit court, a petition to challenge the unpromulgated rule, and vigorously defended the administrative actions filed against its facilities. In so doing, the Petitioner incurred legal expenses and costs necessitated by the Agency's implementation of a policy that had not been established through rule-making procedures. Petitioner's rule challenge alleged that the Agency had failed to follow any rule-making procedures; had enlarged, modified, and contravened the specific provisions of the law; and had implemented a policy that was arbitrary and capricious. Due to the severity of the penalties the Agency sought to impose against the Petitioner, the damage to its reputation in the communities it served, and the resident fear and uncertainty at the facilities, the Petitioner sought and was granted an expedited hearing on the rule challenge. The "Wherefore" clause of the Petitioner's rule challenge clearly stated that Petitioner sought an award of attorneys' fees and costs pursuant to Section 120.595, Florida Statutes. Petitioner had retained outside counsel to pursue each of its legal strategies. On October 31, 2001, a Final Order was entered in the underlying case that directed the Agency to cease and immediately discontinue all reliance on the policy that had not been promulgated through rule-making procedures. That Final Order has not been appealed. The Final Order did not retain jurisdiction for purposes of addressing the Petitioner's request for attorneys' fees and costs. The instant case was opened when the Petitioner filed a motion for attorneys' fees and costs subsequent to the entry of the Final Order in DOAH Case No. 01-3935RU. The matter was assigned a new case number as is the practice of the Division of Administrative Hearings in ancillary proceedings. Accordingly, the instant case, DOAH Case No. 01-4283F, was designated a "fee" case (hence the F at the end of the case number). The initial order entered through the DOAH clerk's office erroneously designated that the fees were sought pursuant to Section 59.11, Florida Statutes. Nevertheless, after the time for appeal of the Final Order (DOAH Case No. 01-3935RU) had elapsed, the matter was scheduled for final hearing. Carole Banks is an attorney employed by the Petitioner as an in-house counsel and director of risk management for the three facilities identified in this record. Ms. Banks is also a registered nurse and has been a member of the Florida Bar since April of 1998. Ms. Banks receives a salary from the Petitioner and is required to perform duties typically associated with her full-time job. Due to the filing of the Administrative Complaints against the facilities, Ms. Banks was required to expend additional time to assist outside counsel to defend the facilities. A portion of that time was attributable to the rule challenge case (DOAH Case No. 01-3935RU). Based upon the testimony of this witness and the exhibits received into evidence it is determined Ms. Banks expended 19.8 hours assisting in the prosecution of the rule challenge case. An appropriate rate of compensation for Ms. Banks would be $150.00 per hour. There is no evidence, however, that the Petitioner was actually required to pay Ms. Banks overtime or an appropriate rate of compensation for her additional work. K. Scott Griggs is an attorney employed by the Petitioner. Mr. Griggs serves as vice president and General Counsel for the Petitioner and is located in Massachusetts. Mr. Griggs did not testify, was not available to explain his time-keeping records, and none of the exhibits in this cause indicate how Mr. Griggs is compensated for his services or what his specific duties entail. While it is certain Mr. Griggs assisted counsel in the prosecution of the underlying case, without relying on hearsay, no determination as to the amount of time spent and the hourly rate that should be applied to such time can be reached. In order to fully protect the Petitioner's interests and those of its residents, the Petitioner retained outside counsel in the underlying case. The law firm of Broad & Cassel was hired to defend the administrative actions, seek injunctive relief, file the underlying case, and pursue other administrative remedies to assist the client. By agreement, Petitioner was to pay the following hourly rates: partners were to be compensated at the rate of $245.00 per hour, associates were to receive $175.00 per hour, and paralegals were entitled to $90.00 per hour. In this case, four partner-level attorneys from Broad and Cassel expended time in furtherance of the client's causes. After reviewing the time records and testimony of the witnesses, it is determined that the partners expended at least 172.6 hours associated with the underlying rule challenge. Additionally, an associate with the Broad & Cassel firm expended not fewer than 12.1 hours that can be directly attributed to the rule challenge case. Additional hours expended contributed to the success of the rule challenge. The Petitioner also incurred costs and expenses associated with the rule challenge. A paralegal expended 4.6 hours (with a $90.00 per hour rate) making copies of the documents used at the hearing. Other costs included court reporter fees, transcripts, telecopy charges, and expert witness fees. It is determined that the Petitioner has incurred $5819.15 in recoverable costs associated with this case and the underlying rule challenge. The hourly rates sought by the Petitioner are reasonable. The time and labor expended by the Petitioner to vigorously protect its legal interests was reasonable given the severity of the penalty sought by the Agency and the circumstances faced by the client. The Petitioner benefited from the efforts of counsel. Due to the time constraints and immediate ramifications faced by the Petitioner, special time and requests were made of the attorneys performing the work for the underlying case. In some instances, the attorneys were required to devote an extensive amount of time to address the client's interests to the exclusion of other work. This was the first time the Broad & Cassel firm had been retained to represent the client. As a result, the attorneys did not have the benefit of a long-term understanding of the facilities and the client's needs. The Broad & Cassel firm and the attorneys assigned to this matter have considerable experience and demonstrated considerable skill, expertise, and efficiency in providing services to the client. Had the Petitioner not prevailed, its ability to honor its hourly agreement with counsel may have been jeopardized. The Agency's expert recognized the difficulties presented by the case and opined that a proper fee would be $42,908. Such amount did not include attorney time spent in preparing for, conducting the fee hearing, or post-hearing activities. Such amount did not cover the amounts depicted in the billing statement from the Broad & Cassel firm. The Petitioner was required to retain expert witnesses to address the fees sought. The calculation of attorney's fees in this cause is complicated by the fact that none of the fees sought would have been incurred by the Petitioner had the Agency not implemented an unlawful policy. That is, had the non-rule policy not been utilized to support Administrative Complaints against the three facilities, none of the fees sought would have been incurred. The Petitioner presented a "shot-gun" approach pursuing every avenue available (including the underlying rule challenge) to dissuade the Agency from pursuing its action against the facilities. Only the rule challenge proved successful. Had the rule challenge not proved successful, residents would have been relocated from their homes. The Petitioner would have incurred extensive financial loss. William E. Williams and Carlos Alvarez testified as experts on behalf of the Petitioner. Their testimony has been considered and their opinions regarding the reasonableness of the fees sought by Petitioner has been deemed persuasive. Based upon the totality of the evidence presented, it is determined that the Petitioner prevailed in the rule challenge. The Agency has not demonstrated that the non-rule statement was required by the Federal Government to implement or retain a delegated or approved program or to meet a condition governing the receipt of federal funds. The formal hearing for fees in this cause lasted 4.75 hours. Petitioner's counsel expended time in preparation for the hearing and in post hearing activities. A reasonable fee associated with that time would not be less than $15,000.00.
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.
Findings Of Fact On August 17, 1992, Petitioner Donald filed a Charge of Discrimination alleging that Respondent Winn Dixie was guilty of an unlawful employment practice, to wit, racial discrimination in failure to "promote" Petitioner from a part-time position to a full-time position because he is black, the most recent non-promotion date being July 22, 1992. After investigation, the Florida Commission on Human Relations entered and mailed a Notice of Determination: No Cause and Determination: No Cause on March 23, 1993. That Notice contained the following pertinent language: If redetermination is not requested, the Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code . . . Failure of Complainant to timely file either a request or petition will result in the dismissal of the complaint pursuant to Rule 22T-9.006, Florida Administrative Code. (See "Exhibit A" attached to, and incorporated in, this Recommended Order). Petitioner mailed his Petition for Relief and it was stamped in as filed at the Florida Commission on Human Relations on April 28, 1993. The Commission did not enter an order of dismissal or otherwise reject the petition as untimely. On May 5, 1993, the Commission transmitted the Petition to the Division of Administrative Hearings (DOAH) for formal hearing pursuant to Section 120.57(1), F.S. On May 5, 1993, and simultaneously with its transmittal of the Petition to DOAH, the Commission served/mailed the Petition to Respondent with a Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice. The Commission's transmittal of Petition had included a Notice to Respondent containing the following specific language: You are required to file an answer with the Commission within 20 days of the date of service of the Petition. Your attention is directed generally to Chapter 22T-8, Florida Administrative Code, which pertains to general procedures before the Commission. You are also referred to Rule 22T-9.008(5) which sets forth those matters which must be included in the Respondent's answer. Please note that the filing of a motion to dismiss does not toll the time for filing an answer. (See "Exhibit A" to this Recommended Order). On May 11, 1994, DOAH's Clerk mailed an Initial Order to both parties. The parties were charged by Rule 60Q-2.003(6), F.A.C. and by DOAH's Initial Order in this case with serving upon each other a copy of every pleading either party filed with DOAH. The Initial Order also permitted the parties to advise the undersigned hearing officer of dates and locations they preferred for scheduling the de novo evidentiary hearing on the merits. Petitioner responded to the Initial Order. Respondent did not. Respondent also filed no Answer to the Petition for Relief within 20 days as required by Rule 22T-9.008, F.A.C., [renumbered 60Y-5.008(5)(a), F.A.C.]. If a Respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the material facts alleged in the petition. See, renumbered Rule 60Y-5.008(5)(d) F.A.C. By DOAH Notice of Hearing mailed May 27, 1993, the cause was scheduled for formal hearing on the merits for October 18, 1993. Simultaneous with that Notice of Hearing, an Order of Prehearing Instructions was entered and mailed. The Order of Prehearing Instructions was directed to both parties and was very specific as to what was required of them, including but not limited to listing witnesses and exhibits, clarifying which issues of material fact were disputed, and listing any pending motions. A copy of the entire order is attached and incorporated in this Recommended Order by reference as "Exhibit B". A joint prehearing stipulation was not timely filed as required by the order of prehearing instructions, and neither party filed a unilateral statement on or before September 29, 1993 as permitted by the order of prehearing instructions. In short, neither party timely complied with the first Order of Prehearing Instructions. On October 1, 1993, certain unsigned, confusing, contradictory, and incomplete papers were filed. This filing, which turned out to be filed by Petitioner (see Finding of Fact 22) among other things requested that the hearing officer subpoena the listed witnesses, listed "stipulations" not signed by anyone, and listed motions never filed at DOAH. This ambiguous item not only was unsigned, but did not reflect who, if anyone, it had been served upon. Common practice and procedure require subpoenas to be sent by DOAH to a party for service by that party on witnesses, and subpoenas may not be served upon witnesses by the hearing officer. The October 1, 1993 filing prompted the entry and service upon both parties of an order on October 12, 1993 which had attached to it the unsigned filings of October 1, 1993. The October 12, 1993 order, with the unsigned and ambiguous attachments is attached and incorporated in this recommended order by reference as "Exhibit C". That order cancelled the October 18, 1993 formal hearing on the merits, subject to rescheduling of the formal hearing on the merits upon clarification of the unsigned papers filed. This order was entered instead of automatically precluding either party from presenting evidence, an option permitted by the prior Order of Prehearing Instructions. The order gave both parties an equal opportunity to do what was procedurally necessary to advance the case to formal hearing on the merits. The October 12, 1993 order granted both parties 45 days in which to confer with one another and file the joint prehearing stipulation contemplated by the prior order of prehearing instructions and to submit several agreeable dates for rescheduling formal hearing on the merits. In further pertinent part, the October 12, 1993 order provided that if a joint stipulation could not be agreed upon between the parties, they could still proceed to formal hearing on the merits by timely submitting unilateral statements listing their respective exhibits and witnesses. The order also went on to specifically provide as follows: Failure of either party to submit at least the names of witnesses to be called by that party and a list of exhibits to be introduced by that party will result in exclusion of that evidence at formal hearing in this cause. Under the terms of the October 12, 1993 order, the date for filing of unilateral witness and exhibit lists was November 26, 1993. Neither party timely filed witness or exhibit lists. On December 14, 1993, which was eighteen days after the last date for compliance with the October 12, 1993 order had passed with Petitioner and Respondent each failing to timely comply therewith, another order was entered. That order advised the parties that since, by the terms of the October 12, 1993 order, both parties were now precluded from presenting any evidence in support of, or contrary to, Petitioner's claim, it appeared that there was no need to conduct an evidentiary hearing. However, the order also granted the parties 30 days in which to show cause why Petitioner's Petition for Relief should not be dismissed for failure to comply with the October 12, 1993 order. A copy of the December 14, 1993 order is attached and incorporated in this recommended order as "Exhibit D". That same day, Petitioner filed a request for 22 blank subpoenas and to reschedule formal hearing, but no witness or exhibit list. A copy of this item is attached and incorporated in this recommended order by reference as "Exhibit E." The date for filing of responses to the December 14, 1993 order to show cause was January 13, 1994. Respondent did not file any response to the December 14, 1993 order or the December 14, 1993 pleading. 1/ However, on January 13, 1994, Petitioner timely filed a paper captioned "Pleadings Motions". This paper, a copy of which is attached and incorporated in this recommended order as "Exhibit F," was similar, but not identical to, the unsigned papers filed October 1, 1993. It again requested subpoenas be served by the hearing officer, listed names and addresses of potential witnesses, and requested that the case not be dismissed because Petitioner was without legal counsel and because it is "a very hard case". It specifically stated, "Please consider hearing my testimony and others on this matter." Petitioner's January 13, 1994 pleading could be read as a motion to allow Petitioner to testify and present witnesses and exhibits. In an abundance of caution, the undersigned mailed a copy of it to Respondent on January 18, 1994. Respondent did not file any response to Petitioner's January 13, 1994 pleading. As required by law, the undersigned had served Respondent with all DOAH orders and notices. Also, in an abundance of caution, the undersigned had served Respondent with Petitioner's January 13, 1994 pleading and the unsigned October 1, 1993 papers at the address of record for Respondent's "in-house" counsel, which name and address was provided in the Florida Commission on Human Relations referral papers. No documents were returned to the Division of Administrative Hearings, creating the legal presumption that all materials had been received by Respondent. Still, Respondent had failed to comply with any DOAH order whatsoever and for nine months had not taken any affirmative action to defend against the Petition for Relief. No Answer to the Petition for Relief, timely or otherwise, had ever been filed by Respondent. The record, as reviewed by the undersigned as of February 3, 1994, also indicated that Petitioner's original Charge of Discrimination before the Florida Commission on Human Relations had been directed to Respondent, not at a Jacksonville address, but at a Quincy address. Therefore, because the law and the undersigned are loathe to cut off any legitimate litigation, and in a further abundance of caution, the undersigned determined that Petitioner and Respondent should have one last opportunity to explain why they had not timely complied with prior orders and why, if at all, a formal hearing with witnesses and exhibits on the merits of the Petition for Relief should be rescheduled. To that end, and still in an abundance of caution, an order was entered on February 3, 1994, a copy of which order is attached and incorporated in this recommended order by reference as "Exhibit G". The decretal portion of that order read: A hearing on the limited issue of whether or not either party should be permitted to present evidence at a rescheduled formal hearing will be held at 10:00 a.m., March 1, 1994, at the Division of Administ- rative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida.* Witnesses need not appear at that time. Only parties or their legal counsel shall appear. Failure of Petitioner to appear in person or through legal counsel at that date, time and place WILL result in dismissal of this cause. Failure of Respondent to appear in person or through legal counsel at that date, time and place WILL result in the exclusion of all of Respondent's witnesses and evidence. 4. [sic] Whether or not a formal hearing on the merits will be rescheduled at all will be determined by an order entered after the undersigned has heard what the parties may have to say at the hearing now scheduled for March 1, 1994. (Emphasis in the original). Still in an abundance of caution, the foregoing order was served by the undersigned upon Respondent at both its Quincy and Jacksonville addresses. No court reporter was present at the March 1, 1994 interlocutory hearing. Petitioner appeared and represented himself at the March 1, 1994 hearing. Respondent's "in-house" counsel from Jacksonville did not appear at the Tallahassee hearing but authorized Winn-Dixie's District Manager W. E. Carroll and its Quincy Store Manager Terry Miller to appear. Mr. Carroll works in Tallahassee. Mr. Miller drove 23 miles from Quincy for the hearing. After examination by the undersigned in open court pursuant to Rule 60Q-2.008, F.A.C., Mr. Carroll was accepted as a qualified representative for Respondent. Inquiry was also made by the undersigned at the March 1, 1994 hearing as to any reason a formal hearing on the merits should be rescheduled. Each prior order and pleading 2/ was explored orally in open court. Oral argument was also invited as to why either party should be permitted to present evidence. Oral admissions and stipulations of the parties were received. At that hearing, Petitioner contended that he had not understood the prior orders and that the unsigned papers filed October 1, 1993 (see Findings of Fact 8-9 supra.) were his attempt to provide a witness list. Petitioner also contended that he thought he was represented by legal counsel at one point and to support that assertion, he presented a December 6, 1993 letter he had received from Legal Services of North Florida, Inc. The original of this letter (exhibit) is attached and incorporated in this recommended order as "Exhibit H". At that hearing, no clear explanation was given of why Respondent had failed to Answer the Petition for Relief and also had filed no response to any prior DOAH order or pleading by Petitioner. Still in an abundance of caution, and because the undersigned is loathe to enter defaults or impose sanctions at any time, each party was permitted 10 days after the March 1, 1994 formal hearing in which to file any further written clarification of the record or pleadings. Petitioner filed a response dated March 10, 1994 on March 10, 1994, but Respondent still filed no Answer to the Petition for Relief, despite numerous questions by the undersigned at the March 1, 1994 hearing concerning what facts asserted in the Petition for Relief were admitted and which were denied by Respondent and inquiring why no Answer had been filed by Respondent. On March 4, 1994, Respondent filed a written response dated March 3, 1994. A copy of Petitioner's March 10, 1994 response, without attachments, is attached and incorporated herein as "Exhibit I." A copy of Respondent's March 4, 1994 response, without attachments, is attached and incorporated herein as "Exhibit J." Respondent's March 4, 1994 letter ("Exhibit J") was directed primarily to providing the hearing officer with a history of settlement negotiations and copies of proposed settlement documents. This is a practice contrary to Section 90.408, F.S., The Florida Evidence Code. Respondent had filed no Motion to Dismiss the Petition for Relief and no Answer, and although by rule, even a motion to dismiss may not toll the 20 days provided by rule for Respondent to answer the Petition for Relief, Respondent's March 4, 1994 letter response also raised, for the first time, the untimeliness of the Petition for Relief as grounds to dismiss this cause. However, Respondent's March 4, 1994 allegations based on untimeliness of the Petition were not persuasive, in that the rule that Respondent cited in support thereof applied only to what the Florida Commission on Human Relations or its Executive Director may do either sua sponte or upon motion regarding Requests for Redetermination. The rule cited therein was inapplicable to the legal principle for which Respondent cited it. Therefore, Respondent's argument against the Petition was incorrect or incomplete. Also, due to the complexity of the several statutes and rules involved, ruling on the issue of untimeliness vel non of the Petition for Relief required the taking of factual evidence. For instance, there is a Commission rule which tolls the 30 days for filing the Petition if the Petitioner applies for, or the Commission grants, an extension of time for filing the Petition. Consequently, Petitioner was entitled to an opportunity to present all the facts concerning his filing of the Petition in response to the allegations of the Respondent's March 4, 1994 letter. The representations of Respondent's qualified representative at the March 1, 1994 hearing and the materials filed after that hearing by Respondent's "in house" counsel ("Exhibit J") did not show good cause why Respondent should be permitted to put on a defense by way of undisclosed oral testimony or exhibits. Likewise, Petitioner did not demonstrate by his oral argument, exhibit, and post-hearing response ("Exhibit I"), any legal good cause why his noncompliance with prior orders should be excused so as to permit him to call any witnesses or put in evidence any exhibits not disclosed to Respondent. More specifically, the date and contents of the December 6, 1993 letter to Petitioner from Legal Services (original is "Exhibit H" hereto) did not support Petitioner's oral assertions at the March 1, 1994 hearing that he had been represented in this case by legal counsel, had relied on a lawyer to meet his November 26, 1993 filing date, or that Legal Services' retention of his documents at a critical time had prevented his timely compliance with any of the prior orders herein. Accordingly, an order was entered on April 21, 1994. A complete copy of that order is attached and incorporated in this recommended order by reference as "Exhibit K". That order provided, in pertinent part, as follows: The representations of Respondent's qualified representative at the March 1, 1994 hearing and the materials filed after that hearing by Respondent's legal counsel have not shown good cause why Respondent should be permitted to put on a defense by way of undisclosed oral testimony or exhibits. Likewise, Petitioner has not demonstrated good cause why his noncompliance with prior orders should be excused so as to permit him to call any witnesses or put on any exhibits not disclosed to Respondent. However, since Petitioner clearly has always been an appropriate witness and his oral testimony could be reasonably anticipated by Respondent, a formal evidentiary hearing pursuant to Section 120.57(1) F.S. will be convened solely for the taking of Petitioner Donald's oral testimony, subject to cross examination by Respondent. Also, the materials filed by Respondent's counsel after the March 1, 1994 hearing state for the first time that Respondent believes the Petition for Relief is subject to discretionary dismissal for untimeliness, pursuant to Rule 22T-9.07 F.A.C. [new number, if one exists, was not given]. However, Respondent still did not see fit to put this observation or belief in the form of a motion. Jurisdictional issues may be raised at any time. The jurisdictional issue requires evidence to sustain a motion, if a motion is made. Should Respondent see fit to defend on that issue by motion and evidence, Respondent remains free to do. (Emphasis supplied) Simultaneous with the entry of the April 21, 1994 Order, a Notice of Hearing was mailed to the parties. It provided for a formal hearing on June 13, 1994 and stated the issues as: "As set forth in the order entered simultaneously herewith. [The only witness will be K.E. Donald.]" Despite the language employed in the April 21, 1994 order, which still permitted Respondent to assert the untimeliness of the petition for Relief as a bar or jurisdictional issue, Respondent did not file a written motion or submit supporting documentation (evidence) on that issue prior to the June 13, 1994 formal hearing. At formal hearing on June 13, 1994, Respondent moved orally to dismiss the Petition for Relief due to its late filing. Hearing Officer Composite "Exhibit A" was admitted in evidence. Hearing Officer Composite "Exhibit A" consisted of The Florida Human Relations Commission Transmittal of Petition (one page), Charge of Discrimination (one page), Petition for Relief (three pages), Notice of Determination: No Cause (two pages) and Determination of No Cause (two pages). The original of this composite exhibit as received in evidence at formal hearing is attached and incorporated in this recommended order as "Exhibit A" to this Recommended Order. At formal hearing, Petitioner testified that he had not moved the Florida Commission on Human Relations for an order extending his time to file his petition, no order extending time had been entered, and he had neither a postmark nor any clear recollection of the date he mailed his Petition to the Commission. If Florida Commission on Human Relations Rules 60Y-4.004, 60Y- 4.007(1), 60Y-4.008(2), F.A.C., are not applicable, the Petition for Relief should have been filed with the Commission on April 22, 1993, a Thursday, and was filed late by six days, since it was filed with the Commission on April 28, 1993, the following Wednesday. These foregoing rules provide that when a document is received by mail, the date of filing shall relate back to the date of the postmark, provide three days for mailing where notice is mailed, and provide an extra day for filing when the last day falls on a Saturday, Sunday, or legal holiday. If those rules apply, then the Petitioner's delay is shorter than six days or indeterminable. The Petition for Relief was admittedly received by Respondent's "in- house" counsel on or before May 6, 1993. Respondent was specifically asked by the undersigned hearing officer how the late filing of the Petition for Relief had prejudiced Respondent's position. Respondent asserted that Respondent could not have foreseen that Petitioner would ultimately have been permitted to testify on his own behalf, and that, but for the Petition for Relief being filed six days late, Respondent might have filed an answer, would not have assumed that the Petition was barred and would not have, due to a conflict in the rules, failed to respond to all pleadings and orders, might have secured "out of house" counsel, would not have expended the cost of trying to negotiate a settlement with Petitioner after the cancellation of the October 18, 1993 formal hearing, and would not have incurred "enormous expense" during the Florida Commission on Human Relations' investigatory phase, in sending Messrs. Carroll and Miller to the March 1, 1994 DOAH hearing, and in filing its only written materials on March 4, 1994. Since the investigatory phase before the Florida Commission on Human Relations predated that agency's March 23, 1993 Determination of No Cause and also predated the filing of the April 28, 1993 Petition for Relief, that portion of Respondent's argument related to incurring enormous expense is patently absurd, as is Respondent's assertion that Respondent could not have foreseen that Petitioner would be permitted to testify on his own behalf. The expense incurred by Respondent in having one layman travel twenty three miles to Tallahassee and the other travel across town to formal hearing, even considering the value of those gentlemen's time to the corporation, and in having "in-house" counsel file Respondent's March 4, 1994 letter is de minimus, and these expenses have no nexus to the lateness by six days of the April 28, 1993 Petition for Relief. Respondent failed to demonstrate how the filing of the Petition for Relief on April 28, 1993 instead of on April 22, 1993 could have reasonably prevented Respondent from filing an Answer within 20 days as required by Rule 22T-9.008(5), F.A.C., [now renumbered as 60Y-5.008(5), F.A.C.], and as specifically instructed by the Florida Commission on Human Relations in its Transmittal of the Petition to Respondent. (See Finding of Fact No. 4, supra and "Exhibit A"). Respondent also failed to demonstrate how, under the circumstances of the language contained in the Florida Commission on Human Relations Transmittal of Petition and the DOAH orders, Respondent could have been misled by conflicting language in Rules 22T-9.07 [now renumbered 60Y- 5.007(9) and (12)], 22T-9.08 [now renumbered 60Y-5.008(1) and (5)] and 60Q- 2.004(5), F.A.C., 3/ into not answering the Petition for Relief for more than thirteen months, indeed, never answering it, or how such circumstances prevented Respondent responding to other motions and orders or prevented Respondent from obtaining "out of house" counsel. Settlement negotiations are not cognizable by the trier of fact, are always undertaken at the parties' mutual risk, and have never been deemed sufficient to toll filing dates. See, Section 90.408, F.S. After Respondent had been given the opportunity to present any further evidence on its oral motion to dismiss the Petition for Relief, the oral motion to dismiss was taken under advisement for resolution in this Recommended Order. (See Conclusions of Law, infra.) Respondent then orally moved for clarification of the April 21, 1994 Notice of Hearing and Order Limiting Scope of Formal Hearing, which was resolved by rereading that order and notice into the record. Respondent next orally moved for leave to present witnesses, contrary to the decretal portion of the April 21, 1994 order. No good cause was shown to vacate the April 21, 1994 order limiting evidence. To permit Respondent to put on undisclosed witnesses while Petitioner was precluded from doing so after Petitioner had appeared at formal hearing believing that Respondent's failure to answer constituted an admission of the material facts alleged in the petition and Petitioner had come prepared only for direct and cross-examination of himself would be unduly prejudicial. The motion was denied. The facts that Rule 60Y-5.008(5)(d) F.A.C. presumes admitted under the unanswered Petition for Relief are those set out in the Petition itself. They are fully set out in "Exhibit A" hereto and provide, in part, as follows: "The company had followed discriminatory hiring assignment and promotion policies against minority group members on an equal basis with white people. My fourteenth amendment were [sic] violated. That white get hired off the street and get full time without any training, the first day. * * * Discriminatory hiring, firing, assignment and promotion policies against Negroes using their position and power to destroy black worker jobs in order to bestow them on white workers." ("Exhibit A") Petitioner's unrefuted testimony elaborated on the foregoing admitted facts to show that Respondent employed fifteen or more employees and that Petitioner, a black male, had been employed part-time for nearly four years by Respondent in its Quincy store managed by Mr. Terry Miller; Mr. Miller's assistant had hired Petitioner as a member of a truck unloading crew. Petitioner also showed that other white workers were hired off the street without job training for full-time positions. However, Petitioner was hired by Mr. Miller as a full-time employee effective June 9, 1994, four days before formal hearing. Petitioner admitted that at some time before June 9, 1994, he had been "written up" for not meeting the employer's dress code and appearance standards and had also been "written up" for not meeting the employer's performance standards of moving at least 45 cases per hour. Petitioner maintained, without refutation, that these "write-ups" were unwarranted, pretextual citations because he was black. Petitioner testified, without refutation, that on at least one occasion he was "written up" in a category that did not include his regular job duties. This admission is no different that the expanded allegations included in an attachment to the Petition ("Exhibit A"), all of which allegations have been admitted by Respondent by its failure to answer the Petition. Petitioner also conceded, upon cross-examination, that in July 1992 there were some black full-time associates in the Quincy store and that promotions have been based on job performance, not seniority. However, no similarity of these other black full-time employees' employment situations or job duties was drawn to compare with Petitioner's personal employment situation or job duties. Consequently, the "write-ups" of Petitioner are found to be pretextual reasons for the employer's refusal to promote him. No stipulation or order bifurcating damage evidence from evidence of discrimination was entered in this case. Petitioner asserted that he was entitled to "compensation" from July 22, 1992 to June 9, 1994, but he presented no evidence of his pay rate per hour in either the full time or part time positions, nor any other nexus upon which lost compensation damages could be calculated. There also is no record evidence of what increases and/or decreases occurred in pay, pay rate, or emoluments for either position over that period of time. Likewise, there is no record evidence of how many hours Petitioner worked or could have worked in either the part-time or full-time position so that damages based on a pay differential can be calculated. Respondent orally moved to dismiss for failure of Petitioner to state a prima facie case. That motion was also taken under advisement for resolution in this Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Florida Commission on Human Relations enter a final order FINDING: That Petitioner has shown a prima facie violation of the Human Rights Act of 1977, Section 760.10 F.S. [1989], to wit: failure of a covered employer to "promote" Petitioner-employee to a full-time position because he is black; That Respondent has articulated, but has not substantiated, legitimate nondiscriminatory reasons for the actions complained of; and That Petitioner has shown the articulated reasons to be pretextual; AND ORDERING: That Respondent employ Petitioner in a full-time position. RECOMMENDED this 15th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 15th day of August, 1994.
