Findings Of Fact The Florida Department of Insurance (Department) is responsible for regulation of insurance transactions in the State of Florida. In 1996, the United States Supreme Court held in Barnett Bank of Marion County, N. A. v. Nelson, 517 U.S. 25 (1996) that nationally chartered banks located in towns with populations of 5000 or less were authorized to own insurance agencies. In response, the 1996 Florida legislature revised Section 626.988, Florida Statutes (the "anti-affiliation" statute) to conform to the Court's ruling in the Barnett case The 1996 legislature also enacted Section 626.5715, Florida Statutes, informally identified as the "parity statute." Section 626.5715, Florida Statutes, provides as follows: The department shall adopt rules to assure the parity of regulation in this state of insurance transactions as between an insurance agency owned by or an agent associated with a federally chartered financial institution, an insurance agency owned by or an agent associated with a state- chartered financial institution, and an insurance agency owned by or an agent associated with an entity that is not a financial institution. Such rules shall be limited to assuring that no insurance agency or agent is subject to more stringent or less stringent regulation than another insurance agency or agent on the basis of the regulatory status of the entity that owns the agency or is associated with the agent. For the purposes of this section, a person is "associated with" another entity if the person is employed by, retained by, under contract to, or owned or controlled by the entity directly or indirectly. This section does not apply with respect to a financial institution that is prohibited from owning an insurance agency or that is prohibited from being associated with an insurance agent under state or federal law. (Emphasis supplied.) The 1996 legislature also amended to Chapter 120, Florida Statutes (the Administrative Procedures Act) to restrict agency authority to promulgate rules, so as to prohibit the adoption of rules which, although perhaps rationally related to the purpose of an implementing statute, were not specifically authorized by the legislature. In the summer of 1996, the Department began circulating a draft of rules intended to address issues related to the sale of insurance in financial institutions. Beginning in January 1997, the Department began the formal process of adopting rules intended to address the "parity" of insurance regulation between insurance agencies affiliated with financial institutions and agencies which are unaffiliated. The Petitioners challenged parts or all of the proposed rules as invalid exercises of delegated legislative authority. As set forth in the Final Order entered June 29, 1998, in the consolidated rule challenges, Proposed Rules 4-224.002, 4-224.004, 4-224.007, 4-224.012, 4-224.013 and 4-224.014, Florida Administrative Code, were determined to be invalid exercises of delegated legislative authority. Although the challenged rules were determined to be invalid exercises of delegated legislative authority for various reasons, all were determined to be outside the Department's specific statutory authority as set forth by the legislature. There was no appeal of the Final Order. Prior to the hearing on the fee issue, all parties signed and filed a Prehearing Stipulation. According to the Prehearing Stipulation, "[t]he Department disputes entitlement to fees as a matter of law. It does not dispute the reasonableness of the fees, as capped by statute. It disputes the reasonableness of the costs sought by Florida Bankers Association. " The applicable statute provides that "a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust." The Department asserts that the agency's actions in adopting the challenged rules were substantially justified and that special circumstances exist which make the award unjust. The greater weight of the evidence fails to support the assertion. The evidence establishes that, from the initiation of the rule drafting process, the issue of whether the Department had the authority to adopt the proposed rules was of concern to the parties in this case. In response to an early draft of the rule circulated by the Department, the Florida Bankers Association (FBA) in June 1996 asserted that the proposed rules were outside the Department's authority under the parity statute. The FBA continued to maintain this position throughout the rule-drafting process and the subsequent rule challenge cases. The Department was apparently also concerned about whether the agency had authority to adopt the rules. In response to a question raised by Department legal staff, a December 31, 1996, letter to the Department from an attorney at the Joint Administrative Procedures Committee on the issue of authority indicates that the Department's general authority to adopt rules was restricted by the 1996 APA amendment to Section 120.536(1), Florida Statutes, and that additional specific authority would be required to support the promulgation of rules. At the fee hearing, the Department conceded that the parity statute alone did not grant the agency with the specific authority to prescribe or proscribe specific acts or actions of an insurance agent. The Department asserted that the authority for the proposed rules was set forth by the combination of Section 626.988, Florida Statutes, under which pre-existing rules had been adopted, with the Department's previous legal actions related to insurance sales by agents affiliated with financial institutions, and the presumed effect of the parity statute on the Department's otherwise-existing authority. The evidence fails to establish that the Department's reliance on historical authority to promulgate rules and the authority provided under the parity statute was reasonable given legislative restrictions on agency rulemaking set forth in the 1996 legislature's amendments to the Administrative Procedures Act. There was no credible evidence presented at the rule challenge hearing or during the fee hearing which suggested that an emergency, either existing or potential, which required the Department to take immediate action to protect insurance consumers. There was no credible evidence presented at the rule challenge hearing or during the fee hearing that insurance consumers were threatened by an availability of insurance products in settings other than in insurance agencies. There are no special circumstances that make an award of fees and costs unjust. The Department apparently asserts that because the FBA participated in the rulemaking process, special circumstances exist which make an award of fees unjust. Although the FBA participated in the workshop process, the FBA consistently asserted, as stated earlier, that the proposed rules were outside the Department's authority under the parity statute. By letter of June 5, 1996, the FBA specifically filed written objections to the proposed rules, asserting that they were inconsistent with the APA amendments and the authority granted by the parity statute. Further, the FBA noted in the June letter and again in a letter of September 27, 1996, that the purpose and authority of the parity statute was met by a single proposed rule which, in essence, stated that the provisions of the Florida Insurance Code were applicable equally to all agents and agencies, regardless of ownership or affiliation. At the fee hearing, the Department acknowledged that the FBA had raised specific objections regarding the agency's lack of statutory authority during the rule process. The FBA consistently asserted during the rulemaking process that the proposed rules were outside the Department's authority under the parity statute. The FBA pursued the assertion throughout the rulemaking process and successfully challenged the rules on the same basis. There was no evidence presented during the rule challenge or the fee case suggesting that the FBA retreated from the objection at any point in the rulemaking process. According to the Prehearing Stipulation signed and filed by the parties, the disputed issues of fact are whether the expert witness fee paid to Dr. Michael White was reasonable and whether other costs sought to be recoverable are reasonable. The only specific challenge presented by the Department to costs is directed towards Dr. White's fees. The evidence establishes that under the circumstances of this matter, Dr. White's fee is reasonable. At the fee case hearing, the FBA presented the deposition testimony of William B. Graham, an attorney practicing in Tallahassee, Florida, in support of Dr. White's fees. Mr. Graham's testimony is accepted and credited as to the amount of Dr. White's fee and to the time required to prepare for and participate in this proceeding. Based on Mr. Graham's testimony, Dr. White's fee of $320 per hour is reasonable for an expert of Dr. White's credentials. There is no credible evidence to the contrary. According to the three dated invoices submitted to the FBA by Dr. White, Dr. White expended a total of 106 hours and five minutes in rule challenge-related activities on behalf of the FBA. Based on Mr. Graham's testimony, the time recorded by Dr. White of 106 hours and five minutes for his services is reasonable under the circumstances of the rule challenge. There is no credible evidence to the contrary. The total amount of time billed by Dr. White results in a fee of $33,946.66. The three invoices submitted by Dr. White also bill the FBA for expenses totaling $2,643.72. There is no credible evidence that the Dr. White's expense billings are unreasonable. The total amount of fees and expenses charged by Dr. White to the FBA is $36,590.38. The FBA paid to Dr. White the total amount reflected on his invoices. By comparison with the fees charged by its own expert, the Department asserts that Dr. White's fees are unreasonable. The fact that the Department paid its expert less than the FBA paid to its own does not establish that payments to Dr. White were unreasonable. The amount of the attorney's fees to which the successful parties are entitled is not at issue in this proceeding. According to the Prehearing Stipulation, the Department "while contesting entitlement to any award of fees . . . does not dispute that the fees sought, as capped by the statute, is reasonable for the efforts of all counsel in this proceeding." The FBA, by affidavit, identified attorney's fees totaling $145,683.01, and seeks an award of $15,000, the statutory limit. By stipulation of the parties, the FBA is entitled to an award of attorney's fees in the amount of $15,000. The FBA identified total costs of $40,537.53, including the fees and expenses paid to Dr. White. There is no evidence that the costs of $3,947.15 set forth in the attorney billing records (and unrelated to costs related to Dr. White) are unreasonable. Based on the foregoing, the FBA is entitled to receive a total of $55,537.53. The Community Bankers Association identified attorney's fees totaling $10,290.00, and costs of $806.23. By stipulation of the parties, the Community Bankers Association is entitled to an award of attorney's fees in the amount of $10,290.00. There is no evidence that the Community Bankers Association costs of $806.23 are unreasonable. Based on the foregoing, the Community Bankers Association is entitled to receive a total of $11,096.23. The Department asserts that, due to "untimeliness" of the Petitions for Fees filed in these cases, an award of fees in this case is unjust. There is no issue of timeliness to be addressed in this matter. The Petitions for Fees were filed approximately 60-90 days after the time for appeal of the Final Order in the rule challenge cases had passed. The Final Order entered in the rule challenge proceeding specifically retained jurisdiction for an award of fees. There is no evidence that the Department was adversely affected by any delay in filing the Petitions for Fees.
Conclusions Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Insurance shall pay total fees and costs as follows: The Florida Bankers Association shall receive a total of $55,537.53 The Community Bankers of Florida shall receive a total of $11,096.23. DONE AND ORDERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2000. COPIES FURNISHED: Virginia B. Townes, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 231 Orlando, Florida 32802-0231 Counsel for Florida Bankers Association Michael H. Davidson, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Counsel for Department Martha J. Edenfield, Esquire Pennington, Moore, Wilkinson & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Counsel for Community Bankers of Florida Eli S. Jenkins 3330 Overlook Drive, Northeast St. Petersburg, Florida 33703 Authorized Representative of Specialty Agents, Inc. Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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 Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether 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.
Findings Of Fact By agreement with the prosecution Dr. Brown had sought to delay consideration of his procedural motion to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076, pertaining to the patients J.C., D.R., T.E. and K.J. The parties to that action anticipated considering the motion at the final hearing as part of the case on the merits. The hearing officer was persuaded that the procedural motion to dismiss had to be examined separate and apart from the consideration of the case on the merits as to those four patients. Consequently the motion to dismiss was entertained concerning its evidential and legal basis prior to a hearing on the merits. This led to the decision on June 9, 1992, to dismiss the action pertaining to treatment of the patients J.C., D.R., and T.E., with leave to refile at some future date. The decision to dismiss was based upon the pertinent facts and law when examined in accordance with Section 455.255(1), Florida Statutes. The motion to dismiss the action concerning treatment of the patient K.J. was denied. The reason for the dismissal was announced in the record on June 9, 1992, and memorialized in the transcript of the proceedings. It was concluded that there was not an adequate basis to institute an investigation concerning the patients J.C., D.R., and T.E.; that the Department of Professional Regulation, now the Department of Business and Professional Regulation, did not furnish Dr. Brown or his attorney with a copy of the complaint or the document that resulted in the initiation of the investigation pertaining to the three patients; and, that Dr. Brown did not have the statutorily mandated opportunity to respond to the accusations made against him related to the care that he provided those three patients. Therefore, the procedural requirements under Section 455.225(1), Florida Statutes, had not been met and the case as it pertained to the three patients was dismissed with leave to refile. The procedural requirements related to the patient K.J. had been met and it was appropriate to present the K.J. case to the Probable Cause Panel for its deliberation, unlike the circumstance with the other three patients. It was determined that the quality of consideration by the Probable Cause Panel when voting to prosecute Dr. Brown for his treatment of K.J. was adequate. Based upon the ruling directed to the treatment of patients J.C., D.R., and T.E. the Department of Professional Regulation was not allowed to proceed against Dr. Brown for the care rendered those patients. A subsequent recommended order addressed in substance the prosecutions associated with DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patient K.J.; DPR Case Nos. 011343 and 011344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358, traced the history of those cases in the preliminary statement to the recommended order and identified the prior ruling dismissing the actions pertaining to the patients J.C., D.R., and T.E. That recommended order was not an invitation to the Board of Medicine to respond to a recommendation of dismissal. The recommended order in the cases pertaining to patients other than J.C., D.R., and T.E. was entered on December 30, 1992, based upon the formal hearing conducted pursuant to Section 120.57(1), Florida Statutes, on various dates in June and July, 1992, and concluded on July 10, 1992, before the present hearing officer. On February 26, 1993, the Board entered its final order in the above- referenced cases and commented to the effect that it had approved the recommended dismissal by the hearing officer concerning the patients J.C., D.R., and T.E. with leave to refile. Neither party appealed the hearing officer's decision dismissing those counts within DPR Case No. 91-06883/DOAH Case No. 92-1076 directed to the patients J.C., D.R., and T.E. On March 8, 1993, Dr. Brown took an appeal from the final order of the Board of Medicine entered on February 26, 1993, which included the comment approving the actions by the hearing officer in dismissing the counts pertaining to the patients J.C., D.R., and T.E., but without prejudice to bring those actions again following compliance with Section 455.225, Florida Statutes. Robert C. Brown, Jr., M.D., is a licensed physician practicing in the state of Florida. He has held a license entitling him to practice in that state at all times relevant to the inquiry. At relevant times Dr. Brown has practiced medicine at 4519 Brentwood Avenue, Jacksonville, Florida, 32206. He is the sole medical practitioner of an incorporated professional practice. He has had less than 25 employees and his net worth has been not more than 2 million dollars. Dr. Brown is the only share holder in his incorporated professional association. No one else has ownership interest in the incorporated professional association. At times Dr. Brown has drawn a salary from the professional association as an employee of the professional association. His request for attorney's fees and costs are directed to the actions of the Department of Professional Regulation for its procedural noncompliance with Section 455.225, Florida Statutes, and the subsequent decision of the Board of Medicine to find probable cause and to have the Department of Professional Regulation proceed against Dr. Brown for care rendered the patients J.C., D.R., and T.E. The action to recover attorney's fees and costs not to exceed $15,000 was filed on April 27, 1993. The petition for attorney's fees and costs of April 27, 1993, was amended on July 15, 1993. Dr. Brown retained the law firm of Stowell, Anton and Kraemer to represent him in the aforementioned cases pertaining to the administrative prosecutions. His present attorney, Julie Gallagher, was principal counsel in those cases. No issue has been taken with the notion that $165.00 is a reasonable hourly rate for her services in defending Dr. Brown in the administrative prosecutions. Dr. Brown has paid all fees and costs charged by his lawyer in preparation for and participating in the proceedings related to the administrative prosecutions. To challenge the alleged procedural infirmities associated with the right to investigate, notice to the accused, opportunity for the accused to respond to the accusations and deliberations by the Probable Cause Panel contemplated by Section 455.225, Florida Statutes, it was not necessary for Dr. Brown to fully develop his defense on the merits of the accusations pertaining to patients J.C., D.R., and T.E. Dr. Brown's counsel in the exhibit associated with claims for attorney's fees and costs has highlighted the exhibit through color-codes in an attempt to assist the hearing officer in understanding the meaning of that exhibit. This color-code system attempts to identify those instances in which Dr. Brown claims that the work done on his behalf is associated only with patients with J.C., D.R. and T.E. and other occasions where a percentage is set forth in relation to work done in the entire DPR Case No. 91-06883/DOAH Case No. 92-1076, to include K.J. and in the other cases referenced before. The code is described in the August 16, 1993 cover letter from counsel for Dr. Brown. No attempt is made through the coding system to differentiate between those actions taken in moving to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patients J.C., D.R. and T.E. from other activities related to defending the accusations about those patients on the merits. The right to recover, if at all, is limited to those attorney's fees and costs associated with the motion to dismiss counts pertaining to the patients J.C., D.R., and T.E., together with the attorney's fees and costs associated with the present case. No other efforts by Dr. Brown's attorneys may be the proper subject for recovery. Not only was it not necessary to know information concerning the merits of the administrative complaint pertaining to patients J.C., D.R., and T.E. to pursue the motion to dismiss on procedural grounds, the decision that was made did not resolve the merits set forth in the administrative complaints directed to Dr. Brown's treatment of J.C., D.R., and T.E. The possibility exists that Dr. Brown could be called upon to defend against similar accusations to those set forth in the DPR Case No. 91-06883/DOAH Case No. 92-1076 at which time he could prepare himself to defend the merits and if successful that would be the appropriate moment to seek attorney's fees and costs for that aspect of the case. The arrangement by stipulation between the parties in the prior prosecution to delay consideration of the motion to dismiss until the place at which prosecution of the cases involving J.C., D.R., and T.E. were being examined on their merits was not appropriate. Consequently, Dr. Brown may not assert that he was required to prepare his motion to dismiss on procedural grounds simultaneously with his defense on the merits of the administrative complaint directed to the patients J.C., D.R., and T.E. Within this context, taking into account a lack of opposition to the $165.00 hourly rate charged by Dr. Brown's counsel, the following amounts are found to be associated with the pursuit of the motion to dismiss those counts related to patients J.C., D.R., and T.E. and claims under Section 57.111, Florida Statutes, to recover attorney's fees and costs: 3/11/92-$165.00; 3/14/92-$165.00; 3/16/92-$125.00; 3/31/92-$100.00; 4/2/92-$247.50; 4/6/92- $62.50; 4/6/92-$198.00; 4/10/92-$50.00; 4/16/92-$10.00; 4/17/92-$50.00; related to the motion to dismiss and 4/27/93-$165.00; 5/3/93-$33.00; 5/12/93-$15.00; 5/17/93-$82.50; 6/14/93-$165.00; related to the prosecution of the petition for attorney's fees and costs. No proof was offered concerning any special circumstances that point to any injustice in awarding attorney's fees and costs in the amount identified.
Findings Of Fact The special condition in invitation to bid No. 69-360-240-F that petitioner challenges here provides: PUBLIC ENTITY CRIMES Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy(s) of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. Joint Exhibit No. 1. Under the heading "Bid Conditions," Rule 13A-1.008(2), Florida Administrative Code, incorporates form PUR 7068 by reference, and requires that invitations to bid on term contracts include the form. Challenge Untimely The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [Like the original invitation to bid, the revised invitation to bid contained the following language: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit No. 5.] "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition for Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled `Public Entity Crimes' on page four of the invitation to bid." No Future Effect Already superseded in subsequent invitations by a revised version (T.142, 171), any special condition like the one petitioner challenges will soon undergo further change. Effective October 1, 1990, Section 287.133(3)(a), Florida Statutes will be amended to read: * Prior to entering into a contract a person shall file a sworn statement with the contracting officer . . . <<for the calendar year. The department shall adopt by rule a standard sworn statement . . .. The form shall include>> [[on a form to be promulgated by the department by rule, including the following information:]] The name of the person. The business address . . . * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Chapter 90-33, Sections 1 and 3, Laws of Florida (1990) (language added or deleted by Chapter 90-33). "Only if the responding bidder does not have the [sworn statement on public entity crimes] . . . on file with [respondent's] . Division of Purchasing on or after October 1 this year" (T. 135) must a sworn statement accompany a bid. The amended statute "effective on October 1 allows . . . submission of the public entity crime form document on a calendar year basis. So, it does not have to be submitted with each and every bid." (T. 135.) Petitioner does not anticipate bidding in response to any other of respondent's invitations to bid any time before October 1, 1990. When asked, "Is it Jones' Floor Covering's intention after October 1st, to submit only one sworn statement a year to the Division of Purchasing," (T. 95) Rocky Wayne Jones, a vice- president in petitioner's employ, answered, "Whatever we need to do, that's what we will do to be able to bid on State work. If that's what the law is, then we will do what the law says to do." T. 95.
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
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 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.
