Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
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 this cause is barred by a release of all claims.
Findings Of Fact On January 16, 2019, on her last day of employment with Respondent, Petitioner executed a General Release. Petitioner does not dispute that she signed the General Release, which states, in pertinent part: I knowingly and voluntarily release and forever discharge [Respondent] of and from any and all claims, known and unknown, anticipated and unanticipated, asserted and unasserted, which I have or may have against the [Respondent] as of the date of execution of this General Release. These released claims include, but are not limited to, any alleged violation of ... Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; ... [and] the Florida Civil Rights Act[.] * * * By signing below, I am knowingly and freely waiving and releasing all claims I may have against the [Respondent]. I further affirm I have been given a sufficient amount of time to consider whether to sign this General Release. The subject complaint of discrimination was brought by Petitioner, after she signed the General Release, pursuant to the FCRA, which is specifically referenced as a released claim in the General Release. By executing the General Release, Petitioner released Respondent from the claims that were the basis for her complaint of discrimination. Petitioner asserts that the General Release was signed under duress, she did not give up her rights because she had not yet received her final paycheck or belongings, and that there is no proof that she received consideration for signing the general release.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Kathy L. McKethan’s Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Keith L. Hammond, Esquire Law Office of Keith L. Hammond, P.A. Post Office Box 547873 Orlando, Florida 32854 (eServed) Kathy McKethan Post Office Box 953304 Lake Mary, Florida 32795 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 1075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
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 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 Whether Florida Administrative Code Rule 15A-9.006(2) (the Rule) is an invalid exercise of delegated legislative authority, pursuant to section 120.52(8)(b), (c), and (d), Florida Statutes.
Findings Of Fact An IID is: A breath alcohol analyzer connected to a motor vehicle's ignition. In order to start the motor vehicle engine, a convicted person must blow a deep lung breath sample into the analyzer, which measures the breath alcohol concentration. If the breath alcohol concentration exceeds the fail point on the [IID], the motor vehicle engine will not start. Fla. Admin. Code R. 15A-9.003(13). Rule 15A-9.005, which is entitled, "Specifications," provides in part: All [IIDs] will be required to meet or exceed the standards set forth in the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772- 11787 by the National Highway Traffic Safety Administration. Technical specifications for the operation and installation of the [IID] shall be described in the contract between [Respondent] and the manufacturer(s). The [IIDs] alcohol fail point shall be the level specified by Section 316.1937, Florida Statutes. Rule 15A-9.005(4), (5), and (6) establishes performance specifications for failed-point tests on initial startup and rolling retests and for an emergency bypass. Rule 15A-9.007, which is entitled, "Certification," provides: Each manufacturer under contract with [Respondent] will submit certification from an independent laboratory certifying that their [IID] has been tested in accordance with the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772-11787 by the National Highway Traffic Safety Administration and the [IID] meets or exceeds those specifications, as well as criteria set forth in the contract with [Respondent]. The manufacturer shall be responsible for the continuing certification of [IID] service providers for use of an approved [IID]. Rule 15A-9.003(6) defines "certification" as the "testing and approval process required by [Respondent]." Rule 15A-9.003(16) defines "manufacturer" as the "actual producer of the [IID] who assembles the product and who may provide distribution and services." Rule 15A-9.003(21) defines "service provider" as the "retail supplier of the approved [IID]." Rule 15A-9.008 addresses the installation and removal of IIDs. Rule 15A-9.008(1) requires the "manufacturer or his [sic] representative" to install the IID in accordance with the guidelines of the National Highway Traffic Safety Administration. Rule 15A-19.008(2) requires the "service provider" to develop and deliver an IID orientation to the convicted person. Rule 15A-9.009 addresses the servicing of IIDs. Rule 15A-9.009(2) requires the "service provider" to service the IID at the intervals stated in the contract with Respondent, calibrate the IID, retrieve data from the IID and timely submit the data to Respondent, and check for signs of tampering with the IID. Rule 15A-9.009(5) requires an IID to record the time and date of each breath test, the breath alcohol level of each test, and the time and date of any attempt to tamper with the IID. Rule 15A-9.009(6) requires the "manufacturer or service provider" to maintain a toll-free 24-hour emergency telephone support service and fix or replace any nonoperational IID within 48 hours of any call. Rule 15A-9.006, which is entitled, "Procedure for [IID] Approval," provides: All ignition interlock devices used pursuant to Sections 316.193 and 316.1937, Florida Statutes, must be approved by the department. The department shall contract with a manufacturer or manufacturers of ignition interlock devices for the services and commodities required for implementation of Sections 316.193, 316.1937, and 316.1938, Florida Statutes. The department shall maintain a list of approved ignition interlock devices. For the specific authority and laws implemented, Rule 15A-9.006 cites the same authority: sections 316.193, 316.1937, and 316.1938, Florida Statutes, and Federal Register Volume 57, Number 67, pages 11772-11787. Section 316.193 imposes penalties for DUI offenses. For second and third DUIs, convicted persons must have installed "an [IID] approved by [Respondent] in accordance with s. 316.1938." Section 316.1937 authorizes a court to order the installation of an IID under circumstances other than those described in section 316.193. Section 316.1937 provides that the court may prohibit the convicted person from operating a motor vehicle unless it is equipped with a "functioning [IID] certified by [Respondent] as provided in s. 316.1938 " The most relevant statute to this case is section 316.1938, which provides: [Respondent] shall certify or cause to be certified the accuracy and precision of the breath-testing component of the [IIDs] as required by s. 316.1937, and shall publish a list of approved devices, together with rules governing the accuracy and precision of the breath-testing component of such devices as adopted by rule in compliance with s. 316.1937. The cost of certification shall be borne by the manufacturers of [IIDs]. No model of [IID] shall be certified unless it meets the accuracy requirements specified by rule of [Respondent]. [Respondent] shall design and adopt by rule a warning label which shall be affixed to each [IID] upon installation. The label shall contain a warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a violation of law and may be subject to civil liability. The document at Federal Register, Volume 57, Number 67, pages 11772, et seq., is a notice of the National Highway Traffic Safety Administration of technical specifications for IIDs (Model Specifications). Model Specifications applies to the manufacture, testing, calibration, data-reporting, and tamper-monitoring of IIDs. IIDs are manufactured by 16 corporations in the United States. Most, if not all, states operate IID programs for DUI offenders. Petitioner is a manufacturer and service provider of IIDs. Its sole manufacturing facility is in Cocoa, Florida, where Petitioner employs 30-35 persons. About 35,000 of Petitioner's IIDs are in use in 25 states, but not Florida. Intervenors, which are affiliated corporations, are manufacturers and service providers of IIDs. (References to Intervenors will include either Intervenor, as appropriate.) Pursuant to the contract described below, Intervenors have provided IID services to over 6000 convicted persons in Florida. Intervenor is a manufacturer and service provider of IIDs and presently operates in 46 states. Respondent has tentatively selected Intervenor as the sole vendor for the state of Florida in the 2013-14 procurement described below. In 2003, Respondent issued an invitation to negotiate for IIDs and IID services. Following a tentative award to Intervenors, a vendor challenged the award, arguing, at least in part, that Respondent lacked the authority to limit the number of IID service providers. In a settlement, Respondent awarded the south region of Florida to Intervenors and the north region of Florida to the bid protestor, which was #1 A Lifesafer, Inc. (Lifesafer). In 2004, Respondent entered into contracts for IIDs and IID services with these vendors. As extended, the 2004 contracts are set to expire on March 31, 2014. Respondent issued a Request for Proposals on July 3, 2013 (RFP). Providing for the replacement of the 2004 contracts described in the preceding paragraph, the RFP is to enable Respondent to select up to two vendors to "implement and operate an [IID] Program" in Florida. RFP Attachment C-19 provides that the term of the new contract(s) shall be five years with an "anticipated" renewal term of another five years.2/ The RFP calls for responses detailing, among other things, the IID hardware by name and model, which must comply with Model Specifications requirements; software to provide Respondent with online access to data downloads from IIDs; installation; service, inspection and monitoring; contractor staffing; training of staff; security and fraud prevention; and transition services for IID convicted persons being serviced by a party to the current IID contract. No one filed a specifications challenge to the RFP. Respondent received four responses; they were from Petitioner, Intervenors, Intervenor, and Lifesafer. Petitioner, Intervenors, and Lifesafer have challenged the tentative award to Intervenor, and these bid protests are pending at DOAH as DOAH Case Nos. 13-3924BID, 13-3925BID, and 13-4037BID. Respondent acknowledges that the procurement of IIDs and IID services by contract provides it more flexibility than if it specified requirements and performance standards by rule. Respondent concedes that other states allow IID service providers to operate IID programs with open competition. Respondent contends that procuring these IID services by statewide or regional contract ensures the delivery of services to rural areas that otherwise might be underserved, the delivery of uniform services throughout the state, the transmission from the IID service provider of compliance data that would be jeopardized if numerous IID service providers operated in the state, the existence of a process for the removal of an IID service provider that did not discharge its responsibilities in a timely and competent fashion, and the familiarity among Respondent's limited staff with the limited makes of IIDs in use in Florida.
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
