Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and ENTERED this 16th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1984. COPIES FURNISHED William W. Tharpe, Jr., Esquire Department of Insurance Larson Building Tallahassee, Florida 32301 Dock Blanchard, Esquire Post Office Box 24 Ocala, Florida 32678 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
The Issue Respondents' alleged violation of Section 477.02(6), Florida Statutes.
Findings Of Fact Respondents received a copy of the Administrative Complaint and Notice of Hearing as evidenced by receipt for certified mail. (Exhibit 1) Respondents Arvle and Malvey Sue Kiser operate Golden Touch Coiffeurs, 901 Fillmore Avenue, Lehigh Acres, Florida under Certificate of Registration to operate a cosmetology salon No. 20014 issued by Petitioner on May 27, 1974. On June 13, 1975, Petitioner's inspector visited Respondents' establishment and observed Pearl Raulerson Curry washing the hair of a patron. When asked if she had a Florida license to practice cosmetology, Curry responded that she did not have one. At that time Malvey Kiser informed the inspector that Curry was going to take the test for a license. Kiser knew that Curry didn't have one at that time. (Testimony of Rubin) Respondent Malvey Sue Kiser submitted a written statement in which she claims that the law requiring a licensed person to perform specialist duties in a beauty salon is discriminatory because the same requirement is not imposed on persons performing the same services in barber shops. In her statement she acknowledged that she was aware that the employee Curry did not possess a current license when she was permitted to work in the salon, and that she hired Curry only after having made unavailing complaints of discrimination to various state officials and an attorney. The result was that she decided to challenge the law in question. She further states that she did not receive a quick and speedy hearing which, in turn, weakened her defense inasmuch as witnesses were no longer available. She also claims that the Notice of Violation given to her on June 13th was misleading in that it stated that failure to cure the alleged violation might result in additional disciplinary proceedings or other legal penalties. She therefore believed that if she complied by insuring that the employee became licensed there would be no further proceedings. (Statement of Malvey Kiser)
Recommendation That Respondents' Arvle and Malvey Sue Kiser be issued a written reprimand for violation of Section 477.02(6), Florida Statutes. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Arvle and Malvey Sue Kiser P.O. Box 1752 c/o Golden Touch Coiffeurs Tallahassee, Florida 901 Fillmore Avenue Lehigh Acres, Florida
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of October, 2012.
The Issue Whether Petitioner was discriminated against based on his race or in retaliation for participation in a protected activity in violation of Chapters 760.10(1)(a) and (7), Florida Statutes.
Findings Of Fact Petitioner, Charles Rogers, is a Caucasian male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Corrections as a correctional probation officer. He was supervised by Susan Bissett-Dotson, a Caucasian female. In late August, Petitioner had a person he supervised come into his office to discuss pending warrants for the person's arrest. When advised of these warrants, the probationer ran, causing Petitioner to have to pursue him through the office. On September 6, 2001, as a result of the foregoing incident, Petitioner received a written reprimand for violation of office policies and improper use of force. Petitioner failed to follow a policy requiring notice to others in the office when an offender might be arrested in the office. Adam Thomas, the circuit administrator, reviewed the use of force and determined Petitioner had used force appropriately. Nevertheless, the reprimand from Susan Bissett-Dotson contained reference to improper use of force in addition to failure to follow office procedures. Petitioner filed an internal grievance contesting that portion of the reprimand referencing improper use of force. His grievance was heard and the reprimand was reduced to a record of counseling, deleting any reference to an improper use of force. Petitioner's pay, benefits, ability to be promoted, as well as all other aspects of his employment were not affected either by the original reprimand or the subsequent record of counseling. Petitioner's caseload was reassigned four times within a 14-month period. These reassignments occurred between August 29, 2000, and October 2, 2001. Only one of them took place after his grievance. The reassignments did not involve a physical move to a different office; rather, Petitioner received a new set of offenders to supervise whose files were in various stages of development. The reassignments did not involve any material changes in his duties or responsibilities. There was no amount of greater or less prestige associated with any of the caseloads he received. The reassignments did require him to become familiar with a new area and a new group of persons. Petitioner was required to do extensive work to re-develop these files, which task was onerous. The decision to reassign Petitioner's caseloads was taken in relation to the reassignment of other personnel based upon several factors, including but not limited to: assignments from the judiciary; the geographic location of the various officers vis-à-vis supervised offenders; the officers' expressed willingness to accept a new caseload; the officers' qualifications to handle specialized caseloads; and the equitable distribution of the cases. One of the reassignments was caused when Petitioner was out for more than two weeks, which requires a mandatory reassignment of cases. The desires of Petitioner were not considered, although Ms. Bissett-Dotson gave full consideration to the wants and desires of the others who were moved. Petitioner alleges that he was yelled at in a meeting for having an overdue assignment; he produced an e-mail berating him for a late case; and records were introduced that showed the case was not overdue. Records were introduced about the redistribution of another officer's caseload. Of the 31 cases reassigned, 20 were assigned to Petitioner. This occurred on November 14, 2001. Petitioner complained that he was not allowed to work before 8:00 a.m. Ms. Bissett-Dotson was questioned as to whether she allowed Petitioner to work prior to 8:00 a.m. She stated that she had denied his request to work before 8:00 a.m. because 8:00 a.m. to 5:00 p.m. was the standard work day for the office, and it was necessary to have coverage during those hours. Because of various requirements, such as working during court, some officers had to be off during normal hours. Other officers had to be out of the office more than others. All of this affected when and whether one could deviate from standard office hours. On three occasions, Petitioner's firearms locker was accidentally used by other officers. On at least one of these occasions, a camera was locked in the locker along with Petitioner's lock. Petitioner was not subject to any discipline as a result of these incidents and Susan Bissett-Dotson was approached by other probation officers on each of the occasions and informed that each had been a mistake. Ms. Bissett-Dotson was satisfied with these explanations. While only one of the reassignments took place after the grievance, clearly Ms. Susan Bissett-Dotson was not fair and equitable in her treatment of Petitioner.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order indicating clearly that exercise of career service and other employment rights guaranteed by statute are subject to Section 760.10, Florida Statutes, protection, and that the Petition herein is dismissed not because it was not proved, but because it was not properly pled. DONE AND ENTERED this 15th day of November, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 STEPHEN F. DEAN 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 15th day of November, 2002. Charles Rogers Post Office Box 331 Worthington Springs, Florida 32597 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, a licensed all lines adjuster, committed the offenses alleged in the Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes (2002). See § 624.307(1), Fla. Stat. (2002). Respondent has been continuously licensed in the State of Florida as an independent all lines adjuster authorized to transact insurance adjusting business since August 1986. On January 1, 1999, at approximately 11:55 p.m., Respondent was driving his Ford Bronco in Tampa, Florida. Hillsborough County Sheriff's Deputy White noticed that Respondent's license tag appeared to be expired. He followed Respondent for about a quarter of a mile, while he ran Respondent's tag number through the computer to determine whether it was, in fact, expired. Upon receiving an affirmative response, Deputy White pulled over Respondent's vehicle. Reserve Deputy McLaughlin was riding with Deputy White. Deputy McLaughlin approached Respondent's car and immediately detected a strong odor of burning marijuana. Deputy White then approached the car and confirmed the smell of marijuana smoke. The deputies asked Respondent for permission to search his vehicle. According to both deputies, Respondent not only gave them permission to search his car, but told them where they could find the marijuana, which was inside a black travel bag on the back seat of the car. Both deputies testified that Respondent told them he had received the marijuana as a Christmas gift. Respondent was arrested for possession of more than 20 grams of cannabis, a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998). At the hearing, Respondent testified that the black travel bag containing the marijuana belonged to an acquaintance to whom he had earlier given a ride. Respondent testified that he did not know the marijuana was in the car until the deputies found it and denied having told the deputies where to find it or that it was a Christmas gift. Respondent's testimony on these points was not credible. On or about February 12, 1999, a one-count information was filed in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, charging Respondent with possession of cannabis in violation of Subsection 893.13(6)(a), Florida Statutes (1998), a third-degree felony. On September 30, 2002, Respondent entered a plea of nolo contendere to the charge, which was accepted. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of six months and ordered to perform 50 hours of community service. Respondent successfully completed his probation, and an order terminating probation was entered on February 5, 2003. After Respondent's arrest, but before the disposition of his case, the Department received an unrelated complaint concerning the manner in which Respondent was handling claims. Ms. Raulerson, a Department investigator, performed an investigation. She discovered that the Department did not have a current resident address for Respondent and obtained the correct address through Respondent's father. On January 3, 2002, Ms. Raulerson issued a letter of guidance to Respondent regarding the subject matter of the investigation. Ms. Raulerson's letter also reminded Respondent of his obligation to notify the Department of changes in his principal business, residence, and mailing addresses. She enclosed a copy of the appropriate form on which to notify the Department of address changes. During her investigation of Respondent's claims handling, Ms. Raulerson had a telephone conversation with Respondent. Ms. Raulerson mentioned that, unrelated to her investigation, the Department had received information indicating that Respondent had been charged with a felony. Respondent told Ms. Raulerson that the charge had been dismissed. Ms. Raulerson responded that if the charges had been dismissed, Respondent would be prudent to forward the paperwork to the Department so that its records could be corrected. In October 2002, Mr. Wilds, a Department investigator, was assigned to investigate whether Respondent had been convicted of, or pled guilty or nolo contendere to a felony, and had failed to notify the Department of his conviction or plea. Mr. Wilds was unable to contact Respondent at the addresses in the Department's files, which indicated that Respondent did not take the advice in Ms. Raulerson's letter of guidance. Mr. Wilds added the failure to notify the Department of his address change to his investigator. Mr. Wilds contacted the Hillsborough County Circuit Court to request documentation regarding the outcome of Respondent's criminal case. In response, the Hillsborough County clerk's office provided Mr. Wilds with certified documents indicating that Respondent had pled nolo contendere and been placed on probation. Mr. Wilds next contacted the Department of Corrections to obtain information on Respondent's probationary status. By letter dated December 6, 2002, Respondent's probation officer, Robert Hughey, confirmed that Respondent was serving a probationary period of six months, commencing September 30, 2002, and scheduled to terminate on March 29, 2003. Subsection 626.621(11), Florida Statutes (2002), provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department or office in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to the Department, within 30 days of doing so, that he entered a plea of nolo contendere to a third-degree felony charge of possession of cannabis on September 30, 2002. Respondent testified that he did not inform the Department of his plea of nolo contendere to a felony because Mr. Hughey assured him that he had already notified the Department. The evidence establishes that Mr. Hughey contacted the Department only after Mr. Wilds requested information as to Respondent's probationary status and that this occurred more than 30 days after Respondent entered his plea. However, Respondent's reliance on Mr. Hughey militates against a finding that Respondent's failure to notify the Department was willful. As to the failure to notify the Department of his address changes, Respondent testified that he has always relied on his employers to notify the Department of his address when appointment papers are filed on his behalf and that there was never a problem until these investigations commenced. While Respondent's reliance on his employers does not absolve him of the personal responsibility envisioned by Section 626.551, Florida Statutes (2002), it does militate against a finding that Respondent's failure to notify the Department of his address changes was willful. Respondent's insurance license has not been previously disciplined in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of violating Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint; guilty of violating Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint; and guilty of violating Section 626.551, Florida Statutes (2002), as alleged in Count III of the Amended Administrative Complaint. It is further RECOMMENDED that Respondent's licensure as an all lines adjuster be suspended for three months for the violation of Count I, for three months for the violation of Count II, and for two months for the violation of Count III, with the suspensions for Counts II and III to run concurrently. DONE AND ENTERED this 30th day of April, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of April, 2004.
The Issue The issues in this case are whether Respondent Francisco Vazquez, M.D., committed a violation of Chapter 458, Florida Statutes (2003)(2004), as alleged in the Administrative Complaint filed by Petitioner, the Department of Health, on May 3, 2006, in DOH Case Number 2005-03579; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Francisco Vazquez, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68742 on July 6, 1995. Dr. Vazquez's address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. The Court's Order. On September 5, 2003, Dr. Vazquez executed an Affidavit offering his expert medical opinion that 40 physicians and a hospital were negligent in the care of Patient C.L. The same day, the Affidavit was attached to Notices of Intent to Initiate Medical Negligence Litigation, as required before initiating medical malpractice litigation by Section 766.106(2)(a), Florida Statutes. Subsequently, litigation was initiated in the Circuit Court of the Sixth Judicial Circuit in and For Pinellas County, Florida, Case No. 04-875CI-7 (hereinafter referred to as the "Circuit Court Case"). On February 22, 2005, the presiding judge in the Circuit Court Case, the Honorable Bruce Boyer, entered an Order of Dismissal with Prejudice as to Drs. Hallgren and Schulman Based on Their Motion to Determine the Sufficiency of the Plaintiff's Presuit Investigation. The Order was entered after a February 2, 2005, hearing for which Dr. Vazquez received no notice and in which he did not participate. Among other things, Judge Boyer found in the February 22, 2005, Order the following: This cause came to be heard on February 2, 2005, on the motion of two of the defendants, Scott Hallgren, D.O. and Michael Schulman, [D.O.] to determine whether the plaintiff's claim rests on a reasonable basis and request for dismissal. Neither the pro se plaintiff nor her former attorneys appeared at the hearing. The Court reviewed the defendants' motion and supporting materials which show the following: . . . that the plaintiff's presuit expert is not a gastroenterologist and does not otherwise appear to be qualified to comment on the defendants' care; that the plaintiff's presuit expert does not appear to have made any reasonable effort to investigate and determine what role the defendants played in the decedent's care; that the plaintiffs' presuit expert submitted a scattergun presuit affidavit which charged forty doctors and one hospital with negligence apparently without investigating what role each health care provider played in the decedent's care; that former plaintiff's counsel served the notices of intent on Drs. Hallgren and Schulman based on an inadequate supporting affidavit and without an adequate presuit investigation; . . . . Judge Boyer then ordered that the complaint against Drs. Hallgren and Schulman be dismissed and indicated that "[t]he Court has forwarded a copy of this order to the Division of Quality Assurance of the Department of Health concerning the conduct of the presuit expert, Francisco M. Vazquez, M.D., in accordance with Fla. Stat. § 766.206(5)(a)(2003)." Based upon the foregoing findings, Judge Boyer "found" that Dr. Vazquez provided a corroborating written medical expert opinion for inclusion with a statutorily required notice of claim or intent without reasonable investigation. Dr. Vazquez became aware of Judge Boyer's February 22, 2005, Order when he was notified of the investigation of this matter. Jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Francisco Vazquez, M.D., has violated Section 458.331(1)(jj), Florida Statutes, as described in this Recommended Order; suspending his license to practice medicine in the State of Florida for two years; and imposing a fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 18th day of June, 2007. COPIES FURNISHED: Michael P. Gennett, Esquire Shutts & Bowen, LLP 201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131 Patricia Nelson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Larry McPherson, Executive Director Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
