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.
The Issue Did the Respondent, Florida Department of Law Enforcement ("FDLE"), properly follow the criteria for operational assessment? Did FDLE's operational assessment test all the stated criteria in the Request for Proposal ("RFP")? If FDLE's assessment did not test all the stated criteria, must the RFP be reissued? If FDLE should reissue the RFP, must the issue of whether FDLE properly followed the criteria for operational assessment be determined?
Findings Of Fact 1-12. Adopted. Rejected as contrary to best and most credible evidence. Adopted. Rejected as contrary to best and most credible evidence relating to "Benchmarks". Adopted. True but irrelevant. 18-21. Adopted. 22-25. Irrelevant. 26-28. Adopted. 29. Irrelevant. 30-33. Adopted. 34-39. Irrelevant. Adopted. Irrelevant. 42-44. Adopted. Irrelevant. Adopted. 47-48. Irrelevant. 49-61. Adopted. COPIES FURNISHED: James T. Moore, Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney E. Gaddy, Esq. Judith D. Landis, Esq. Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 W. Robert Vezina, Esq. Mary M. Piccard, Esq. CUMMINGS, LAWRENCE & VEZINA, P.A. P.O. Box 589 Tallahassee, FL 32302 Paul J. Martin, Esq. Department of Legal Affairs The Capitol-Suite 1501 Tallahassee, FL 32399-1050 Terrell C. Madigan, Esq. PAPY, WEISSENBORN & PAPY P.O. Box 1761 Tallahassee, FL 32302 Robert S. Cohen, Esq. HABEN, CULPEPPER, ET AL. Box 10095 Tallahassee, FL 32302
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the award of DEC be rejected and the process return to phase one to relet the bids. DONE AND ENTERED this 1st day of November, 1991, in Tallahassee, Leon County, Florida. STEVEN F. DEAN 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 1st day of November, 1991.
Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: Petitioner, Dr. Frank A. Brown, is a licensed psychologist having been issued license number PY-0002079. Respondent, Board of Psychological Examiners (Board), is the state agency charged with regulating the practice of psychology pursuant to Chapter 490, Florida Statutes. The parties agree that Dr. Brown is a small business party as defined in Subsection 57.111(3)(d)1.a., Florida Statutes. On August 24, 1989, the Board issued an amended administrative complaint against Dr. Brown alleging that he had violated chapter 490 in three respects while treating patient R. B. during the period from 1978 until 1987. In general terms, the complaint alleged that: Petitioner had violated sections 490.0111 and 490.009(2)(k) by committing any act upon a patient or client, other than the spouse of the doctor, which would constitute sexual misconduct. (Count I) Petitioner had violated section 490.009(2) (s) by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. (Count II) Petitioner had violated section 490.009(2)(p) by being unable to practice the profession for which he is licensed under chapter 490 with reasonable skill or competence as a result of a mental or physical condition or by reason of illness, drunkeness, chemicals or any other substance. (Count III) The complaint was later referred to the Division of Administrative Hearings and was assigned Case No. 89-0599. An evidentiary hearing on the complaint was held on September 12 and 13, 1989. At the formal hearing the agency prosecutor voluntarily dismissed Count I, and the case was tried on the remaining two counts. On May 14, 1990, a Recommended Order was issued by Hearing Officer Diane Cleavinger recommending that all remaining charges be dismissed. Of significance to this proceeding is the allegation in Count II which charged Dr. Brown with failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Bearing on Hearing Officer Cleavinger's decision to dismiss that count was her determination that the psychologist-patient relationship ended prior to the beginning of any love affair between Dr. Brown and his former patient. Among others, the hearing officer made the following findings: 5. Respondent's psychologist/client relationship was with R. B. and did not include her husband. The interest demonstrated by R. B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R. B. He met with R. B.'s husband in order to make R. B.'s termination of therapy more successful. The evidence did not show that Respondent had ever agreed to formulate a psychologist/ client relationship with R. B.'s husband and, although the husband paid R. B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during R. B.'s therapy. The other contacts, referenced by R. B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R. B.'s therapy had terminated. The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the B.'s home, asking Dr. Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. (Emphasis added) The underscored portion of the findings was intended to make a determination that any contact between Dr. Brown and R. B.'s children was not made in a professional capacity and as to those contacts the psychological/client relationship did not exist. The recommended order was considered by the Board at a meeting held on June 7, 1990, and was adopted in toto without change. A final order was issued on July 2, 1990, dismissing all charges against Dr. Brown. During the meeting held on June 7, 1990, and while discussing an exception to the recommended order raised by the agency prosecutor, the following statement was made by Board counsel: I will express now what other concern I've had with reading this case. It does seem clear that a dual relationship was formed during that period of time when there was regulation, in that Dr. Brown gave psychological services to the children of his lover, and of her unsuspecting husband. I have - you know, I'm just going to be very honest with you. When I was reading through the transcripts, some of the thoughts that occurred to me were out of his own mouth. . . (emphasis added) This statement was made in the belief, albeit incorrect, that Hearing Officer Cleavinger's findings in paragraph 5 of her recommended order regarding a dual relationship pertained only to the husband and not to the children. Counsel's statement suggested that Dr. Brown's relationship with the children was done in a professional capacity and thus was unethical, given his romantic relationship with R. B. Accordingly, prior to the issuance of a final order in Case No. 89- 0599, on June 11, 1990, the Board's counsel authored the following memorandum to counsel for the Department of Professional Regulation (DPR): By Dr. Brown's own admission, he performed psychological services for the children of R. B. The facts surrounding the dual relationship were not included in the administrative complaint filed in Case No. 89-0599. They do, however, constitute a separate cause of action and should be brought to the attention of the probable cause panel. Responding to this memorandum, DPR counsel recommended on June 18, 1990, that DPR open a new investigation against Dr. Brown concerning the issue of a possible dual relationship, that is, the testing of R. B.'s children while Dr. Brown was engaged in a love affair with R. B. The DPR uniform complaint form described the alleged misconduct in the following manner: Subject stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S. The matter was assigned DPR Case No. 9007566. By letter dated August 11, 1990, petitioner's counsel was advised that a complaint had been filed against his client. The letter gave the following pertinent reasons for initiating the matter: This complaint is based upon information obtained in formal proceedings in Department of Professional Regulation case number 0081809. It is alleged by the Department that during the time Dr. Brown was providing psychological services to the children of R. B., he was concurrently engaged in a love affair with her. This dual relationship is a possible violation of Section 490.009(2) (s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Dr. Brown, through counsel, put DPR on notice by letter dated September 5, 1990, that: It would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. By a second letter dated September 25, 1990, petitioner's counsel again advised DPR "that the Department does not have a basis in law or fact for any allegations." On October 18, 1990, petitioner's counsel authored another letter to DPR stating in part as follows: I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. I respectfully request that this letter be made a part of the investigative file to be considered by the Probable Cause Panel. DPR counsel advised petitioner's counsel on September 28, 1990, that all factual and legal matters, including the objections raised in his letter, would be presented to the probable cause panel. Thereafter, DPR counsel submitted a suggested closing order to the panel proposing that a letter of guidance be issued based upon a belief of a violation of Chapter 490, Florida Statutes, as outlined in the August 17, 1990 letter sent to petitioner's counsel. By letter dated January 11, 1991, petitioner's counsel again placed the Board on notice that the subject matter of the new investigation was barred by the doctrine of collateral estoppel. The letter stated as follows: Dr. Brown was served with the notice of investigation in August, 1990. I have advised the department of Dr. Brown's position by letters dated August 13, August 20, September 5, September 25, October 1 and October 18, 1990. This investigation stems from matters resolved in favor of Dr. Brown in DPR Case number 0081809, DOAH Case Number 89-0599 in which Dr. Brown was charged with failure to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance in violation of Section 490.009 (2)(s), Florida Statutes (1981-86). Included in consideration of that charge was the scholastic testing of the children of (D. and R. B.) which is the subject of this pending investigation. The adopted finding of fact number 5 in the above case refers to the collateral relationships between Dr. Brown and (D. B.) and the children including "testing of the B's children for scholastic purposes." Finding of fact number 5 finds that: ALL SUCH CONTACTS APPEAR TO HAVE BEEN GIVEN IN FRIENDSHIP AND NOT IN A PROFESSIONAL CAPACITY. I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. The panel met on February 14, 1991, and considered DPR's recommendation to prosecute, the investigative report and all supplemental materials including a report from its expert consultant. The panel was also given a copy of the letter sent by Dr. Brown's counsel on January 11, 1991, which raised the collateral estoppel issue. After considering all of these materials, including the estoppel matter, the panel made a determination that respondent violated chapter 490 by providing therapy to the children while romantically involved with their mother and failing to disclose this relationship to the children's school and father. While the panel found probable cause to exist, it was advised by its counsel that the case was "weak," the chances of a successful prosecution were "minimal," and the best it could hope for was a reprimand. Accordingly, it followed the suggestion of counsel and recommended to DPR that the case be closed with a letter of guidance to the subject, which was then the most lenient form of discipline for a licensee. By the admission of counsel and panel members at that meeting, however, it was clear they knew the letter would become a part of Dr. Brown's disciplinary file, it was accessible by any member of the public examining his file, and the Board could use the letter against Dr. Brown in the event of future proceedings. In disposing of the contention by Dr. Brown that the doctrine of collateral estoppel applied, DPR and Board counsel gave the following advice: Ms. Gaffney: There's a great big legal issue in this case. That is whether or not this has been litigated. If we pursue an administrative complaint, we're going to be considering whether or not he treated the children and whether or not that's below the standards. That's easily proved testimony. But we have a pending litigation for attorney's fees on that prior case and this one is a case in which Mr. Lambert, in the materials there, there's correspondence indicating respondent's attorney, Mr. Lambert, will make legal attempts to squash the case by argument and motions to dismiss, such as this has already been litigated and so forth. Possibly double jeopardy, all that. Res judicata and double jeopardy, I think, are the two issues he's raised. I don't know whether he would prevail on that or not. I have a point of view, which is that the actual issue here was not charged in the administrative complaint when it was at the final hearing before the Board. The Board took notice of and supplements, and he said well, that's not charged. You can't do anything about that. So I don't know but that would be already double jeopardy or res judicata. Ms. Daire: I would agree with you on that, that it was not charged in the initial administrative complaint. It only came out in the testimony of Dr. Brown, when he talked about having treated the children, as well, and we could not do anything about that issue that was raised during the proceedings except to issue a new administrative complaint on his own admission. Although the panel members themselves did not discuss the issue, by finding probable cause, they implicitly accepted their counsel's advice and rejected the contention that they were precluded by the doctrine of collateral estoppel from issuing a second complaint on the stated ground. On March 27, 1991, DPR counsel, acting on behalf of the Board and in response to the panel's decision, sent a letter of guidance to respondent which read as follows: This letter is sent to inform you of the action taken in regard to the above-referenced complaint. This complaint concerned allegations that you failed to meet minimum standards of performance in professional activities in violation of Section 490.009 (2)(s), Florida Statutes. It has been determined that probable cause exists to believe that you have violated the provisions governing the practice of psychology. In light of the circumstances presented, however, this case is closed with issuance of this Letter of Guidance in lieu of further administrative action. It has been noted that your professional care for the patient's children while involved with the patient on a personal basis, without disclosure to the father and school falls below minimum standards. The Panel recommends that you review current literature regarding dual relationship issues. I would encourage you to familiarize yourself with the statutes and rules governing the practice of psychology and to abide by these provisions in the future. If you have any questions or comments regarding this matter, please feel free to contact me. On March 19, 1991, or before the letter was issued, petitioner filed a motion to set aside the probable cause determination as improvidently found. After the letter was issued, he requested a formal hearing on four separate occasions. All requests were denied and a final order was issued by DPR on April 24, 1991, denying the petition in all respects. Thereafter, petitioner appealed the letter of guidance to the First District Court of Appeal. The court reversed the Board's action and remanded the matter with instructions to dismiss the complaint. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 602 So.2d 1337 (Fla. 1st DCA 1992). In dealing with the estoppel issue raised by Dr. Brown, the court noted that Hearing Officer Cleavinger had made the following findings in her recommended order: . . . and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. The court went on to say The above-quoted findings of fact establishes that the sole allegation of misconduct in the 1990 complaint was actually litigated in the 1989 case. The record in that case contains evidence that the results of testing the children were submitted to the school. The Department, the Board, and the Probable Cause Panel became bound by the determination of fact that Dr. Brown did not violate section 490.009(2)(s) because a nexus between Dr. Brown's conduct and his practice of psychology did not exist. The Department, Board, and Panel are thus collaterally estopped from reasserting any charge of professional misconduct predicated on these acts. Id. at 1341. The court also noted that a letter of guidance affected Dr. Brown's substantial interests within the meaning of section 120.57, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested. The court added, however, that because the agency was collaterally estopped from relitigating the issues raised in the second complaint, it was remanding the case with directions to dismiss the complaint. The parties are in agreement that the amount of attorney's fees and costs requested by petitioner is reasonable. Such fees and costs total $12,537.00.
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
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
The Issue Whether the 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.
