The Issue Whether Petitioner should be ordered to pay reasonable costs and attorney's fees to Respondent, and, if so, the determination of the amounts of costs and attorney's fees.
Findings Of Fact On April 16, 1996, pursuant to Section 337.14, Florida Statutes, Petitioner submitted its Application for Qualification (Application) to bid on road and bridge contracts. On May 29, 1996, Respondent notified Petitioner of Respondent’s intent to deny the Application, based in part upon the findings of a federal administrative law judge that Petitioner had violated numerous provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sections 651-678 (1970) and should be assessed penalties in the amount of $2,662,834. Petitioner challenged Respondent’s denial with a request for formal administrative hearing before the Division of Administrative Hearings. Following requested continuances, a formal hearing on Petitioner’s request was convened on March 18, 1997, in Division of Administrative Hearings Case No. 96-3037. In the course of discovery proceedings, Petitioner manifested his intention to participate in the final administrative hearing. However, Petitioner did not appear at the final hearing and did not notify the undersigned or counsel for Respondent that an appearance for Petitioner would not be made. Also, Petitioner did not provide explanation for its nonappearance subsequent to that hearing. Petitioner was previously denied pre-qualification to bid on road and bridge contracts. On June 21, 1995, Petitioner had submitted its Application to Respondent and, following Respondent’s denial dated August 23, 1995, requested formal administrative proceedings. After a formal hearing in that case before the Division of Administrative Hearings, Respondent adopted the Recommended Order in its entirety, denying Petitioner’s Application. See, Recommended Order issued February 23, 1996, in Division of Administrative Hearings Case No. 95-5904 (Final Order issued March 28, 1996). On March 17, 1997, the day before the final hearing scheduled in Division of Administrative Hearings Case No. 96- 3037, Respondent received yet another Application from a firm named Anastasios Corporation. This firm performs the same type of work as E. Smalis Painting, Inc., the Petitioner in this matter, and contains an almost identical list of employees to that of E. Smalis Painting, Inc. Both applications have been filled out by hand, with handwriting that appears identical on both documents. The proof presented at final hearing in this case establishes that E. Smalis Painting, Inc., is providing financial backing for Anastasios Corporation and that Ernest Smalis is the chief executive officer of both business entities. Petitioner’s expressed intention to pursue this matter to conclusion; its subsequent failure to follow through on that intention by appearing at the final hearing in Division of Administrative Hearings Case No. 96-3037, or providing either notification of such absence or subsequent explanation; its previous application filing in Division of Administrative Hearings Case No. 95-5904; and its latest filing of an Application for Anastasios Corporation one day before the final hearing in Division of Administrative Hearings Case No. 96-3037, establish that Petitioner has participated in this proceeding for a frivolous, improper purpose. Respondent incurred significant time and expense in preparing its case in this matter which would not have been incurred but for Petitioner’s action in requesting these proceedings for a frivolous, improper purpose. Those expenses include: $711.92 for travel, lodging, shuttle, and parking (Pittsburgh, Pennsylvania) expenses incurred in connection with the depositions of John Morris, a representative of OSHA, and Ernest Smalis, Petitioner’s representative. $893.50 for transcript and service of process costs associated with the above- mentioned depositions. $7,768.75 for attorney time.
Recommendation Accordingly, it is recommended that a final order be entered granting Respondent’s motion for fees and costs in the following amounts: $711.92 for travel, lodging, shuttle, and parking (Pittsburgh, Pennsylvania) expenses incurred in connection with depositions. $893.50 for transcript and service of process costs associated with the depositions. $7,768.75 for attorney time. DONE AND ENTERED this 21st day of August, 1997, at Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1997. COPIES FURNISHED: Murray M. Wadsworth, Jr., Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Ernest Smalis E. Smalis Painting Company, Inc. 4073 Liberty Avenue Pittsburgh, Pennsylvania 15224 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Petitioners are entitled to attorneys' fees and costs.
Findings Of Fact The following facts are taken verbatim from the parties' Joint Pre-Hearing Stipulation (JPS): On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Vipul Patel's Petition for Variance from or Waiver of Rule 64B16-26.2031, F.A.C. (hereinafter Petition for Variance). On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Se Young Yoon's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Miriam L. Hernandez's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mirley Aleman- Alejo's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied John H. Neamatalla's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Md. A. Samad Mridha's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Valliammai Natarajan's Petition for Variance. For convenience sake, the foregoing-named Petitioners are referred to as "Group 1." Petitioners' "Group 2" are identified in paragraphs 38 through 41 of the JPS: On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Saurin Modi's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Deepakkumar Shah's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Ravichandran Sokkan's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mijeong Chang's Petition for Variance. Respondent issued orders denying the Petitions for Variance for Group 1 Petitioners on or about May 9, 2008. Respondent issued orders denying the Petitions for Variance for Group 2 Petitioners on or about July 3, 2008. Subsequent to the entry of the orders denying their variances, each of Group 1 Petitioners retained counsel and filed petitions to challenge the denial of their variances. Subsequent to the entry of the orders denying their variances, each of Group 2 Petitioners retained counsel and filed petitions to challenge the denial of their variances. All petitions were filed within 21 days of the entry of the orders that denied the variance. Respondent did not dispute the timeliness of the petitions, but took no action on the petitions. Instead, on or about August 21, 2008, Respondent reconsidered the petitions for variance, and granted all of the Petitioners' requests. Respondent did not take action on the requests to challenge the original variance denials, did not refer the cases for formal proceedings, and did not re-visit Petitioners' claims until August 21, 2008. On or about September 5, 2008, Respondent entered orders granting Petitioners' variances. Group 1 Petitioners waited approximately five months to obtain approval of their variances. In the meanwhile, they had retained counsel and filed petitions to challenge the denials. Group 2 Petitioners waited approximately three months for their variances to be approved. They, too, retained counsel to protect their rights. In October 2008, Petitioners filed Petitions for Attorneys' Fees and Costs with Respondent. Respondent did not grant, deny, or refer those petitions to DOAH. On or about November 24, 2008, Petitioners filed a Verified Writ of Mandamus, in the Eighteenth Judicial Circuit Court, Seminole County, Florida, requesting that the court require Respondent to either grant or deny the petitions for attorneys' fees and costs. On or about December 2, 2008, Petitioners served on Rebecca Poston, executive director of the Board of Pharmacy, a summons with petition for writ of mandamus. On or about February 16, 2009, Petitioners filed a Motion for Entry of Clerk's Default for Failure of Respondent to file a Response to the writ. The case was transferred to the Second Judicial Circuit, Leon County, Florida. On or about June 4, 2010, the Second Judicial Circuit, Leon County, Florida, issued an Order to Show Cause on Respondent. Ultimately, the court denied the writ and dismissed the Order to Show Cause. Petitioners then filed Petitions for Attorneys' Fees and Costs with DOAH and the cases were consolidated for hearing. The parties agreed to bifurcate the issues and resolve the issue of whether Petitioners are entitled to attorneys' fees and costs, before addressing the remaining question of the amount of fees and costs, if appropriate to award them. Petitioners were the prevailing parties in the underlying matter, since the variances were granted. On August 1, 2008, Respondent issued a Notice of Proposed Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 1, 2008, A Notice of Proposed Rule for rule 64B16-26.2031 was published in the Florida Administrative Weekly. On August 13, 2008, approximately eight days before the variances were approved, Respondent decided to amend rule 64B16-26.2031. Implicit in this amendment, is the concession that the former version of the rule exceeded Respondent's statutory authority. Respondent approved the amended rule 64B16-26.2031, on or about June 10, 2009. Petitioners maintain that Respondent acted with an improper purpose when it denied Petitioners' initial applications and subsequent petitions for variance. Petitioners assert that Respondent caused undue delay, by failing to timely grant or deny Petitioners' petitions to challenge the variance denials, and that Respondent's failure to grant, deny, or forward the petitions to DOAH, was an abuse of the agency's discretion. Further, Petitioners claim that Respondent should have acted on the petitions for attorneys' fees and costs, or referred them to DOAH. Respondent maintains it acted appropriately and in good faith, because its actions were substantially justified and in accordance with law.
Conclusions For Petitioners: George F. Indest, III Justin C. Patrou The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 For Respondent: Allison Dudley Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this Partial 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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
Findings Of Fact Luis Arias, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Similarly, Martin Belle, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Doctors Arias and Belle maintained their practices in Dade County and practiced from the same office, Suite 300, 1444 Biscayne Boulevard, Miami, Florida 33132. The Department of Professional Regulation performs a computerized review of prescriptions written by Florida physicians for Schedule II drugs (this is know as the EPSON survey) to identify physicians who may be engaging in inappropriate practices in prescribing those drugs. If a questionable pattern is detected by the program, it identifies the drug, prescribing physician, the patient, the pharmacy at which the prescription was filled, and the date of the prescription. The survey revealed that patient R. F. had received prescriptions for 400 tablets of Dexedrine and 200 tablets of Seconal written by Dr. Belle during the period from June 13 to August 30, 1985, and one prescription each for 100 tablets of Dexedrine and Seconal written by Dr. Arias during that period. At the time of the investigation R. F. was an eighty-year-old man. Since 1945 he was treated for lack of energy by New York physicians with Dexedrine during the day and Secanol at night to help him sleep. He began to see Dr. Arias in 1970, and Dr. Bell in 1983. R. F. had tried to cut down his use of Dexedrine in 1986, but found he was mentally slow and foggy without it, and unable to perform his work as a marketing director for a large Miami real estate agency. For a man of his age, R. F. was remarkably active. A pharmacy consultant, Lee Pat Strickland, reviewed the EPSON printout and requested further investigation to determine whether Doctors Arias or Belle were inappropriately prescribing excessive quantities of Scheduled II drugs for R. F by filing a complaint with the Department. The information from Mr. Strickland was provided to Medical Quality Assurance Investigator Albert Rourke on March 27, 1986. Upon investigation, Mr. Rourke found another prescription for 100 tablets of Seconal written by Dr. Arias for the patient during the period at issue, June 16 through August 30, 1985. These nine prescriptions provided the patient 500 tablets of Dexedrine and 400 tablets of Seconal within 75 days. Mr. Rourke notified Doctors Arias and Belle of the investigation and interviewed them separately at their offices on April 10, 1986. Both doctors were cooperative during investigation. The patient, R. F., was not interviewed. The Department believes that patients who receive large quantities of drugs often are addicted to them and will not cooperate in an investigation, because it could lead to a cut-off of their source of drugs. While this explains why R. F. was not interviewed, there was no evidence that the patient was, in fact, addicted to either drug. The investigator was merely following a more generalized departmental procedure. The Department thereafter subpoenaed the medical records of patient R. F. This was done without the knowledge or consent of the patient, but by statute such knowledge or consent is unnecessary. After receipt, the medical records were sent to a consulting physician, Dr. John V. Handwerker, who had been used over a long period of time by the Department to review patient records. Dr. Handwerker has a reputation among members of the Bar who defend license disciplinary matters as a tough consultant who commonly made recommendations for the prosecution of physicians under investigation. Dr. Handwerker also had a reputation for being fair, and would not review a case if he felt that he could not be fair. His opinions often were accepted by probable cause panels of the Board of Medicine in determining whether or not to prosecute a physician. Dr. Handwerker received the sealed medical records of R. F. from Investigator Rourke on May 27, 1986. Dr. Handwerker indicated that he knew who Dr. Arias and Belle were, but this would not color his opinion when he reviewed R. F.'s records. The office records for R. F. were contained in a single chart which both Doctors Arias and Belle used at their office. Dr. Handwerker wrote a brief report for the Board of Medicine on June 2, 1986, which consist of three one sentence paragraphs. He determined that the administration of Dexedrine in the quantities prescribed by the doctors were justified but did not explain his reasoning. He gave no opinion as to the appropriateness of prescribing the Seconal, either alone, or in combination with the Dexedrine. Dr. Handwerker did state that he had known Doctors Arias and Belle "personally and professionally for a number of years and their reputations are impeccable." The brief report crosses the line from the tolerably terse to the intolerably mute because it provides a conclusion but no analysis. The Department's investigative files for Doctors Arias and Belle were sent to members of the probable cause panel of the Board of Medicine on July 7, 1986. The files contained the EPSON survey materials, copies of the prescriptions, copies of the medical records for R. F., the statements of Doctors Arias and Belle taken by Investigator Rourke, Dr. Handwerker's opinion, and a recommendation from the Department of Professional Regulation that the matter be dropped. The cases were considered by a probable cause panel of the Board composed of Dr. Emilio Echevarria, the Board chairman, and Mr. Roger Lutz, an attorney, on July 17, 1986. The panel members were assisted by counsel to the panel, Assistant Attorney General Catherine Lannon, and the case was presented by attorneys for the Department, Stephanie Daniel and Bruce Lamb. Department's prosecutors recommended that a closing order be entered and the investigation closed, and they submitted proposed closing order to the panel. Probable cause panels commonly accept a prosecutor's recommendation of no probable cause, and issue closing orders in 80 to 85% of such cases. That did not happen here. Before the discussion on all the cases under consideration that day began, Ms. Lannon cautioned the panel members that any questions concerning applicable laws, rules, or the duties of the panel should be directed to her, and any questions concerning the facts of the case or investigation should be directed to the prosecuting attorneys for the Department, that if any documents were defective copies would be provided, and if clear copies were unavailable the case could be passed until the panel members were provided with everything they needed to consider. She also asked both panel members if they had received the materials in time to review them before the meeting and both Doctor Echevania and Mr. Lutz said that they had. The panel first considered the case of Dr. Arias, and Mr. Lutz stated MR. LUTZ: I tell you what I thought on that one. The consultant says he's a good friend of this guy. It looks like to me we need an independent consultant before we can close it. We'll probably end up closing it, but I don't like closing it based on the guy saying he's my long and personal friend. He's supposed to be a consultant that knows what he's doing, too, we've had him [before?]. I hope you all don't pay him, for God sake, he shouldn't take a job being a consultant on his pal. DR. ECHEVANIA: So what are you suggesting? MR. LUTZ: Get another consultant. I'm sure we're going to close it but it just looks bad. (Joint exhibit 2, page 6.) When the panel later considered the case of Dr. Belle, Mr. Lutz recognized it as a companion case to that of Dr. Arias and requested that a new expert also review that case. There was no evidence from which Mr. Lutz reasonably could have concluded that Dr. Handwerker was a good friend of either Dr. Arias or Dr. Belle. All that the report of Dr. Handwerker suggests is that he had been acquainted with them. As the Hearing Officer found in the underlying case, Doctors Arias and Belle did not know Dr. Handwerker except on a casual basis, they would say hello while passing in the halls of Mercy Hospital where they practiced, but they did not socialize with each other or refer patients to one another. The probable cause panel of the Board did not request that staff inquire of Dr. Handwerker what he meant in his letter when he wrote that he had both personal and professional knowledge of Drs. Arias and Belle. The Department did not independently undertake to make that determination during the nine months intervening before the next meeting of the probable cause panel at which the cases of Doctors Arias and Belle were reconsidered. Ultimately, however, these cases did prompt a change in Department policy, so that the reviewing physician-consultant would be asked, before giving an opinion, whether the consultant was acquainted with the doctor whose conduct was under review, and if so, how well. In fairness and logic that same inquiry should have been made of Dr. Handwerker. Although this is, to some extent, second guessing both the members of the probable cause panel, and the investigative staff of the Department, such an inquiry would have been consistent with the Department policy ultimately adopted. The policy should have been followed in this instance. The transcript of the probable cause panel meeting on July 17, 1986, does not disclose any discussion or analysis of the patient's medical records upon which Dr. Handwerker determined that there was no violation of the Medical Practice Act. The panel members focussed only on Dr. Handwerker's disclosure that he was acquainted with Doctors Arias and Belle. The medical records which had been subpoenaed and all materials reviewed by Dr. Handwerker were then sent to Dr. Laurence Neufeld of Tampa, Florida, on December 3, 1986. Dr. Neufeld is not a specialist, he is engaged in family practice. Dr. Neufeld was never told that the cases had been previously been to a probable cause panel, nor did he know of Dr. Handwerker's opinion. The three page opinion written by Dr. Neufeld on January 25, 1987, is internally inconsistent. It states that the medical records for patient R. F. "support the use of longterm Seconal for sleep in this patient," but also that the prescription of Seconal was inappropriate. (Portions of his report are set out below.) Dr. Neufeld also relied, in his opinion, on the statements which the investigator attributed to Doctors Arias and Belle that the patient "had been treated for severe depression for the prior twenty years and was given Dexedrine to relieve his symptoms." I find that Doctors Arias and Belle never made such a statement to Mr. Rourke. The Investigator must have misunderstood something the doctors said. The patient was never severely depressed. Dr. Neufeld also claims to have found, from the medical records, that the patient "developed hypertension while being treated with Dexedrine." The patient was not hypertensive. The report goes on to state: When [the patient] developed hypertension, the Dexedrine and other stimulants should have been discontinued. The patient should have been referred to a psychiatrist for further evaluation and treatment of his depression. Dexedrine should be used very cautiously in an elderly patient and should not be used in order to control symptoms of fatigue. I do not feel that they adequately tried to use therapeutic doses of antidepressants to control the patient's depression. The patient appeared to be extremely manipulative and the doctors continued to prescribe Dexedrine and Seconal to this patient. It appears that the patient is addicted to Dexedrine and Seconal. The Dexedrine in large doses is more likely to cause fatigue and mental depression. * * * I do not feel that the use of Seconal on a longterm basis is in the best interest of the patient. It is addicting and tolerance rapidly develops to this medication. Both Doctors Belle and Arias prescribed controlled substances to the above patient in excessive and inappropriate amounts. The new probable cause panel met on April 27, 1987, who was made up on Dr. Joseph O'Bryan, Board Chairman, Dr. Armando Santelices and a lay member, Ms. Ernestine Cooper. Also present were counsel for the Board of Medicine, Catherine Lannon, and a new prosecutor for the Department of Professional Regulation, Leslie Brookmeyer. Ms. Lannon again reminded the new panel that questions concerning their legal duties and responsibilities, or the laws and rules that might apply should be directed to her but that questions concerning the facts of the case, or why a certain recommendation was made should be directed to the Department prosecutor. Ms. Lannon also cautioned members to discuss each case in sufficient detail to show that they were exercising independent judgment in reaching their decision on whether to find probable cause to prosecute the case. There was specific discussion of the reasons why the members found probable cause. The panel found Dr. Neufeld's opinion letter persuasive. THE CHAIRMAN: A-2 is two physicians. Dr. Luis Arias, 0068951, and Dr. Arias was allegedly inappropriately prescribing controlled substances, including Dexedrine and Seconal and did not properly refer a patient who was probably depressed. There was some disagreement among the consultants, but I favored the consultant who agreed they (sic) were enough allegations to advise an Admini- strative Complaint and I agree. MS. COOPER: Cooper, and I agree also. I read the report. THE CHAIRMAN: Dr. Santelices? DR. SANTELICES: I just have a question before I say whether I agree or not. Was Dr. Handwerker, Jr.'s letter requested by us? THE CHAIRMAN: Yes, he (sic) one of our experts. MS. BROOKMEYER: He's on of our experts. Yes. You're referring to the fact that there's not a letter requesting his evalua- tion? DR. SANTELICES: Well, the thing is this -- MS. BROOKMEYER: He's basically saying they're friends of mine and I know them. DR. SANTELICES: And it says that they're justified, that the administration is justi- fied. So if it was requested by us we have a consultant who is telling us that it was justified. If it wasn't requested by us it just means the other doctor had a friend write a letter on his behalf. MS. BROOKMEYER: No. I'm pretty sure he was requested by Mr. Wood (phonetic) to write the letter, but the fact that he stated that he had known these people and their reputation is why it was put out to a second expert. We ask our experts in evaluating cases if they know or feel like they have such an intimate relationship with them -- once he identified it then we went on to a second expert. The attorney expert witnesses for Doctors Arias and Belle believed that the probable cause panel should have reviewed the medical records themselves and come to their own conclusions based upon review of the records, which those attorney-experts contend would have confirmed Dr. Handwerker's opinion and caused the panel to disbelieve the report of Dr. Neufeld. That opinion testimony is rejected as unpersuasive. It is not necessary for the probable cause panel to go behind the opinions of consultants hired by the Department, and to make independently their own examination of records, duplicating the evaluation of the consultant. If they must do so, there is little purpose in retaining consultants to review cases and little utility in having lay members of probable cause panels. Neither is it necessary, when a probable cause panel sees there is a disagreement among their consultants, to submit the case to a third expert to act as a sort of arbitrator to resolve the differences among the consultants. Members of a probable cause panel are not required to be skeptical of the conclusions reached by consultants. Were that so, the Board would have had as much reason to question the brief and unenlightening letter from Dr. Handwerker as the discursive report of Dr. Neufeld. The memorandum filed by the probable cause panel on April 27, 1987, against Dr. Arias and the separate memorandum finding probable cause against Dr. Belle had charged both physicians with prescribing schedule II drugs (Dexedrine) for unauthorized reasons, inappropriately prescribing Dexedrine in the presence of hypertension, inappropriately prescribing Seconal, not keeping medical records justifying the use of steroids, and practicing below the applicable standard of care because they did not refer R. F. to a psychiatrist for evaluation and treatment of severe depression. The material submitted to the probable cause panel was sufficient for its members to believe that there was some evidence which, if believed at final hearing, would justify the imposition of discipline against Doctors Arias and Belle. After a full evidentiary presentation the Hearing Officer found that the facts were not as the investigator and Dr. Neufeld supposed them to be. The outcome of the prosecutions ultimately confirmed the opinion of Dr. Handwerker that there was no dereliction on the part of Doctor Arias or Doctor Belle. After the prosecution began, the attorney for the Department sent the matter back to a probable cause panel for additional review on two occasions. The attorney for the Department believed that the evidence would not sustain the allegations of the Administrative Complaint at the requisite level of proof. This was based, in part, on the opinion of an additional expert, Dr. Martin Cohn of the Mt. Sinai Hospital Sleep Disorder Center. Dr. Cohn had given the Department an opinion that the continued prosecution of Doctors Arias and Belle was ill-considered because they had appropriately treated the patient, R. F., for the sleep disorder of narcolepsy.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
The Issue The issue in this case is whether an interpretation of Section 458.331(1)(jj), Florida Statutes, by the Board of Medicine is an agency statement which violates Section 120.54(1)(a), Florida Statutes (2007), pursuant to Section 120.56(4), Florida Statutes.
Findings Of Fact These findings of fact, with a few changes based upon the stipulated record in this case, are facts contained in the Joint Stipulation: The Parties. Petitioner Franciso Vazquez, M.D., is a licensed medical doctor within the State of Florida, having been issued license number ME 68742. Respondent Board of Medicine (hereinafter referred to as the “Board”), is charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Dr. Vazquez’s address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. DOAH Case No. 07-0424PL, Dr. Vazquez’s Disciplinary Case. Dr. Vazquez signed a written opinion in the form of an Affidavit on September 5, 2003, as required by Section 766.104(1), Florida Statutes (2003), in support of a medical malpractice action related to the death of C.L. Dr. Vazquez named approximately 40 doctors and one hospital in the sworn statement. The sworn statement generally stated that each of the defendants committed medical negligence and a breach of the prevailing professional standard of care in a multitude of ways, but did not specify which doctor committed which negligent act or how any individual doctor breached the prevailing standard of care. Dr. Vazquez further asserted in this sworn statement that the negligence and breach of the prevailing professional standard of care of all the doctors caused injury, damage and ultimately the death of C.L. That sworn statement ultimately formed the basis for a civil malpractice action filed on February 2, 2004, in the Circuit Court of the Sixth Judicial Circuit of Florida, in and for Pinellas County, Civil Division, Case Number 04-875CI-7. On or about February 22, 2005, circuit court judge Bruce Boyer of the Circuit Court of the Sixth Judicial Circuit of Florida, in an for Pinellas County, Civil Division, in case Number 04-875CI-7, entered an order of dismissal as to two defendant doctors. In the order of dismissal, Judge Boyer stated that the Dr. Vazquez was not a gastroenterologist and did not otherwise appear to be qualified to comment on the defendants’ care and did not appear to have made any reasonable effort to investigate and determine what role the [two] defendants played in C.L.’s care. Dr. Vazquez was not provided with any notice of the hearing on February 22, 2005, and neither he nor anyone acting on his behalf was present at the hearing to defend his interests. The court forwarded its order to the Division of Medical Quality Assurance as required by Section 766.206(5)(a), Florida Statutes (2003). On or about May 3, 2006, an Administrative Complaint was issued against Dr. Vazquez charging him with a one count violation of Section 458.331(1)(jj), Florida Statutes (2003), which subjects a physician to license discipline for “being found by any court in this state to have provided corroborating written medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim without reasonable investigation.” The recommended penalties for a violation of Section 4458.331(1)(jj), Florida Statutes (2003), include revocation of the physician’s license. Dr. Vazquez is the first and only physician in Florida who has been formally charged with violating Section 458.331(1)(jj), Florida Statutes (2003). On or about January 22, 2007, the Department of Health referred Case No. 2005-03579 (DOH v. Francisco Vazquez, M.D.) to the Division of Administrative Hearings (hereinafter referred to as the “DOAH”) for a formal evidentiary hearing on the Administrative Complaint pursuant to Chapter 120, Florida Statutes. The case was assigned DOAH Case Number 07-0424PL. The case was assigned to the undersigned. On or about March 1, 2007, Dr. Vazquez filed a Motion to Relinquish Jurisdiction in the administrative proceeding, advising the court of his intent to file his constitutional challenge to Section 458.331(1)(jj), Florida Statutes, in circuit court and arguing the DOAH should relinquish jurisdiction until after the Leon County Circuit Court has ruled on his constitutional challenge. On or about March 5, 2007, Dr. Vazquez filed a Petition for Declaratory Action and/or Injunctive Relief in the Second Judicial Circuit Court in and for Leon County, Florida, alleging that Section 458.331(1)(jj), Florida Statutes, is unconstitutional under the U.S. and state constitutions, in that it allows disciplinary action against a physician’s license based exclusively on the existence of a court order entered in a proceeding in which the physician, acting as a presuit medical expert, is not a party and has no right to notice and an opportunity to be heard. The case was assigned case number 2007-CA-0663. On or about March 19, 2007, an Order Denying Motion to Relinquish was entered by the undersigned. On or about March 21, 2007, a hearing was held before the undersigned on Dr. Vazquez’ Motion to Continue Hearing. At the hearing, counsel for the Department of Health, argued that it is her client’s position that Section 458.331(1)(jj), Florida Statutes, only requires proof of the existence of a court order that includes the language mentioned in the statute and that, once this is proven, there is no opportunity for the physician to dispute the findings of the court order. The Department of Health’s argument was accepted by the undersigned. On or about April 17, 2007, after a formal administrative hearing was conducted but before a recommended order was issued, the Department of Health filed a Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing. In the motion, the Department of Health urged the undersigned that a new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), should be accepted, stating: It is the [Department of Health’s] position that Section 458.331(1)(jj), Florida Statutes, creates a rebuttable presumption. Under this interpretation, to create a prima facie case, the Department must prove that [Dr. Vazquez] was found to have provided a corroborating written affidavit in support of a notice of a claim without reasonable investigation. [Dr. Vazquez] may rebut such a showing by demonstrating that, notwithstanding the finding, his investigation was in fact reasonable. On or about May 8, 2007, the undersigned denied the Department of Health’s Motion to Reopen, holding that its new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is contrary to any reasonable reading of the statute. On or about July 5, 2007, the Department of Health filed its Exceptions to the Recommended Order of the undersigned in DOAH Case No. 07-0424PL, in which it reasserted that the correct interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is the one set forth in its Motion to Reopen Hearing (quoted in paragraph 20, supra). On or about July 6, 2007, Dr. Vazquez filed his Reply to Petitioner’s Exceptions urging that, even if Petitioner’s new interpretation of Section 458.331(1)(jj), Florida Statutes, were to be adopted and applied to this case, the case should be dismissed and sent back to the probable cause panel for a determination made based upon the new interpretation. On or about August 10, 2007, a meeting of the Board was held in Fort Lauderdale, Florida at which the Board approved the Department of Health’s Exceptions to the Recommended Order and entered an Order remanding the case back to the DOAH for a “de novo hearing so that findings may be entered consistent with the Board of Medicine’s reading of Fla. Stat. § 458.331(1)(jj), as set forth in this order.” By accepting the Department of Health’s Exceptions, the Board adopted as its own, the interpretation of Section 458.331(1)(jj), Florida Statutes (2003), asserted by the Department of Health in its Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing and quoted in paragraph 20, supra. In light of the fact that the Board has the final authority over its interpretation of the laws it is charged with applying, the Order of Remand was accepted by Order Accepting Remand and Reopening File entered September 17, 2007. On or about January 8, 2008, Dr. Vazquez filed his Motion to Dismiss Administrative Complaint and Remand to Agency for Probable Cause Determination, again arguing that the probable cause determination made against him was based on a reading of the statute which is substantially different than the reading that the Board adopted in the Order on Remand. The Department of Health opposed this motion. The motion was denied by an Order entered by the undersigned on January 18, 2008. The final hearing on remand in DOAH Case No. 07-0424PL was held on January 29, 2008, pursuant to Section 120.57(1), Florida Statutes. In his Amended Petition, Dr. Vazquez has challenged the statement adopted by the Board through its Order of Remand. That statement, which is quoted in paragraph 20, supra, will hereinafter be referred to as the “Challenged Agency Statement.” The Challenged Agency Statement has not been adopted a rule pursuant to Section 120.54(1), Florida Statutes, and the Board has not initiated any rule-making procedures in this regard. The Board has not argued or presented evidence to support a finding that rule-making is not feasible and practicable under Section 120.54(1)(a), Florida Statutes.
The Issue Whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: On March 11, 2004, Petitioner, who was 73 years old, submitted an application for employment to Respondent. Respondent is in the business of transporting passengers to and from airports in Melbourne and Orlando, Florida. It has four regular employees and approximately 20 independent contractors. Petitioner maintains that in an interview with Sandra Tant, president of the Respondent corporation, he was advised that he was "too old" to be employed. This is the sole basis of his claim. Respondent specifically denies having made any statement, either directly or indirectly, to the effect that Petitioner was "too old" to be hired. Respondent testified that Petitioner's motor vehicle operator's license had a "hole" punched through the year portion of the date of birth. This occasioned inquiry into Petitioner's age, although he appears to be his stated age. Petitioner denied that there is a hole in his motor vehicle operator's license. In the copy of Petitioner's motor vehicle operator's license, which is part of Respondent's Exhibit 1, the year is obliterated. When asked to produce his motor vehicle operator's license at the hearing, Petitioner stated that he did not have it. Respondent indicated that Petitioner was disqualified from employment by insurance requirements. Respondent presented a list of Respondent's insurer's driver eligibility standards which indicate that "[T]wo years of driving experience with a like vehicle (limousine, van &/or bus) is preferred." Sandra Tant's testimony on relevant matters is more credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner did not discriminate against Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Monzidelis 2460 Alicia Lane Melbourne, Florida 32835 Sandra Tant, President Melbourne Shuttle, Inc. 1 Air Terminal Parkway Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of her gender, age, and race as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is a 49-year-old, African-American female. Petitioner was hired as a customer service representative at Respondent's Maitland, Florida, location on June 3, 2002. Petitioner received a copy of NuVox’ Employee Handbook, which addressed Respondent's anti-discrimination policies, as well as its policies regarding employee conduct, attendance, paid time off, and termination. Respondent provides voice and data communications services to businesses. On or about August 24, 2009, Petitioner was discharged from her employment with Respondent. Arleen Couvertier was Petitioner's supervisor between January 30, 2009, and May 2009. On February 20, 2009, Petitioner received a verbal warning for violating a policy regarding breaks, when she left for a break during a team meeting. Petitioner was informed that failure to comply with the expectations stated in the warning could result in further disciplinary action up to, and including, immediate termination. On April 8, 2009, Petitioner asked to have May 13, 2009, off as she had been subpoenaed to be in court. Petitioner was advised that she would not have enough paid time off to cover an absence on May 13, 2009, as she had already been approved for a three-day vacation at the end of May into early June, which would put her time off balance at an unacceptable negative 15 hours. Respondent suggested that Petitioner reduce her planned vacation by one day in May so the requested May 13, 2009, time off could be approved. Petitioner was reminded that if she kept her vacation hours, the May 13, 2009, court day would be an unplanned absence, which would result in an unpaid occurrence in accordance with Respondent's policies. Petitioner did not rearrange her vacation schedule and took May 13, 2009, off as an unapproved, unpaid absence, thus, earning an attendance occurrence. On May 11, 2009, Katylyn Weems became Petitioner’s supervisor. In May and June, Petitioner did not meet her performance goals. Petitioner's supervisor reviewed her performance statistics with Petitioner and suggested ways that she could improve. On July 30, 2009, Petitioner received a verbal warning from Ms. Weems, which was witnessed by her former supervisor, Ms. Couvertier, for an attitude problem that was borderline insubordinate, because Petitioner failed to acknowledge or respond to three different managers’ in-person, email, and instant message communications on July 29, 2009. Ms. Couvertier felt that Petitioner’s body language, her failure to answer a question asked from three feet away, and subsequent failure to turn away from her computer to answer the same question asked by Ms. Couvertier directly to Petitioner, was insubordination. On August 6, 2009, Petitioner was placed on a Final Written Warning for poor performance. In addition to her low work quality scores in May (45 percent) and June (54 percent), Petitioner scored equally as low in July (49 percent), compared to her goal of 85 percent through August. Petitioner was informed that she had to show significant performance improvement in 11 specific areas, including, but not limited to, continue to be on time at the start of the shift. Petitioner was told that she was expected to show immediate and sustained improvement in her performance and that failure to comply with the expectations in the final warning could result in further disciplinary action up to, and including, immediate termination. On August 10, 2009, Petitioner asked her supervisor to allow her to take Thursday, August 20, 2009, off from work. Ms. Weems denied her request, explaining that she had previously approved Petitioner’s request to take off Monday, August 24, 2009, and Wednesday, August 26, 2009, which was going to create a negative 13-hour balance and, therefore, she could not approve any greater negative time off balance. On August 20, 2009, Petitioner left a message for Ms. Weems that she would not be in that day because she had an appointment, which was later repeated by email. Petitioner did not appear for work on August 20, 2009. Ms. Weems sent an email to Petitioner informing her that she had earned a third unpaid occurrence for her August 20, 2009, absence without paid time off available, along with information about her two other occurrences. Ms. Weems also informed Petitioner that her day off on August 24, 2009, was no longer approved due to her lack of paid time off. On Friday, August 21, 2009, Petitioner called in to say she would not be in to work. Ms. Weems verbally informed Petitioner on the telephone that because she had taken unapproved time off on August 20 and 21, 2009, the approvals for time off on August 24 and 26, 2009, had both been rescinded and the days off would have to be rescheduled as she had no more available paid time off. Knowing that Petitioner had been subpoenaed to appear in court on August 26, 2009, Ms. Weems suggested that she try to come in on August 21, 2009, even arriving late, so that she would still have a paid time off day available to use on August 26, 2009. Petitioner said, “okay” before she ended the call, but did not come in to work at all on August 21, 2009. On August 24, 2009, Ms. Weems reminded Petitioner that her absence on August 20, 2009, was unapproved and that Petitioner had taken that day off anyway, as well as August 21, 2009. Ms Weems further reminded Petitioner that the August 20 and 21, 2009, absences had caused the approvals for time off on August 24 and 26, 2009, to be rescinded as Petitioner had no paid time off and could not have a further exception. In response, Petitioner emailed Ms. Weems, "I understand[,] but I will not be here on the 26th[.] I will be in court." As a result, on the same day, Petitioner was terminated due to insubordination related to her attendance and poor performance. The "insubordination" is related to Petitioner taking both August 20 and 21, 2009, off when she was told that she could not have August 20, 2009, as paid time off. Respondent presented evidence that credibly supports its assertion that its attendance policy was applied equitably without consideration of race, sex, or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, NuVox, did not discriminate against Petitioner, Jacquelyn Brown, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2010.
