Findings Of Fact On September 6, 2001, Petitioner Bowers filed with the Florida Commission on Human Relations (Commission) a Charge of Discrimination against Respondent, Big Red Waste, Inc. The Charge recited that the most recent or continuing date of discrimination was July 10, 2001, for a finite, one-time act of alleged unlawful employment practice, to wit: termination on the basis of race (Black) and in retaliation. One hundred and eighty days from the filing of Petitioner's Charge with the Commission would have been on or about March 5, 2002. On September 19, 2003, the Commission entered a Dismissal and Notice of Rights. On December 23, 2003, the Commission entered an Amended Dismissal and Notice of Rights. The Commission's Amended Dismissal and Notice of Rights (Amended Dismissal) recited that on May 14, 2002, the Commission had received notice that Respondent had filed a voluntary Chapter 7 Petition in Bankruptcy. Therefore, it is presumed that as of May 14, 2002, an automatic stay of proceedings before the Commission was in effect. The Commission's Amended Dismissal also stated: . . . It has been more than 180 days since Complainant's complaint was filed, and since no determination has been made due to the automatic stay that was issued in Respondent's bankruptcy case, and since Complainant has been previously notified by the Commission of his obligation to file a Notice of Claim [in the federal bankruptcy court], the Commission hereby dismisses this Charge of Discrimination and provides the following Notice to Complainant. Since the Commission did not make a determination of cause or no cause on your complaint within 180 days of the filing of the complaint, you may proceed as if the Commission determined there was reasonable cause. Section 760.11(8), Florida Statutes; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002). You must initiate a civil lawsuit within 1-year from the date of this dismissal, or an administrative action with the Division of Administrative Hearings within 35 days of the date of this dismissal, provided neither date has exceeded a total of four (4) years from the initial date of the violation. Section 760.11(4), Florida Statutes; Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). If more than four (4) years have passed once the automatic stay is lifted on Respondent's bankruptcy case, you must file your civil lawsuit, or your administrative action within 30 days of the lifting of the automatic stay. Morsani v. Major League Baseball, 739 So. 2d 610 (Fla. 2nd DCA 1999). If the Respondent has not emerged from bankruptcy, and if you determine you do not want to wait until Respondent emerges from bankruptcy, you may file a Motion for Relief from Automatic Stay, and present your argument and authorities to the bankruptcy judge assigned to Respondent's bankruptcy case. The Commission does not assist Complainants with filing the Motion for Relief from Automatic Stay. You must consult an attorney on your own for that purpose. [Bracketed material added for clarity.] One year from the Commission's December 23, 2003, Amended Dismissal will be December 22, 2004. Thirty-five days from the Commission's December 23, 2004, Amended Dismissal would have been January 27, 2004. Four years from July 30, 2001, the initial date of the violation, will be July 29, 2005. On February 12, 2004, Petitioner sent a letter to the Commission stating that the Commission's "right to sue" letter did not include a blank Petition for Relief. However, the referral packet from the Commission to the Division included no "right to sue letter." The Commission's response to the Order of the undersigned dated May 3, 2004, does not contain a "right to sue" letter. On February 17, 2004, the Commission entered an Order to Show Cause Why Case Should Not Be Closed Because of Bankruptcy Proceedings (Commission's Order to Show Cause). The Commission's Order to Show Cause noted that Respondent had filed a Voluntary Petition for Bankruptcy, Chapter 11, on October 9, 2001, and that the same case was converted to a Chapter 7 bankruptcy proceeding on May 7, 2002. The Commission's Order to Show Cause also noted that a letter advising Petitioner of the bankruptcy was sent on May 20, 2002, and that a final order distributing all assets and dismissing the bankruptcy case was entered on September 9, 2002. The Commission ordered the parties to show cause, before March 19, 2004, why the discrimination case before the Commission should not be closed. The referral packet from the Commission to the Division included a Response to the Commission's Order to Show Cause, filed with the Commission by the trustee in bankruptcy, on or about March 8, 2004. That Response recites that Respondent's Chapter 7 bankruptcy proceeding was dismissed by a September 9, 2002, Order and that "upon the dismissal order becoming final all of the assets of Big Red Waste, Inc., reverted to that corporation and the automatic stay was terminated and vacated as to all creditors and claimants against Big Red Waste, Inc." The bankruptcy court docket was provided to the Division by the Commission in response to the May 3, 2004, Order herein. Assuming a 30-day appeal period, the dismissal by the Bankruptcy Court became final, at the latest, as of October 8, 2002. Therefore, the latest date the automatic stay was lifted would also have been October 8, 2002, although the September 9, 2002, date of the Bankruptcy Court's Order would be reverted-to, absent an appeal, and there is no evidence of an appeal. According to the Commission's response to the May 3, 2004, Order herein, the Petition for Relief in the instant discrimination case was "inadvertently dated March 13, 2004," but was filed with the Commission on March 9, 2004. The Petition for Relief recites repeatedly, "see attached complaint." There was no complaint attached to the Petition in the packet referred by the Commission to the Division, and none was provided in response to the May 3, 2002, Order herein. Therefore, pursuant to the terms of the May 3, 2004, Order herein, it is presumed that the "complaint" referred to in the Petition for Relief is the September 6, 2001, Charge of Discrimination, and it may further be presumed that no continuing pattern of discrimination continued after the finite termination date of July 1, 2001. However, by the Petition for Relief, Petitioner attempted to add as a party Respondent, Respondent's president, Yvonne Kiawtkowski. Petitioner has as yet demonstrated no good cause to add Respondent's president, in her individual capacity, to this administrative discrimination case when she was not individually charged in the original Charge before the Commission. The copy of the Petition for Relief and Attachments sent to the most recent address in the Commission file for Respondent's Corporation apparently were returned to the Commission. The same has occurred with regard to all papers mailed by the Division to that address. Therefore, no Notice of Hearing can be sent by the Division to Respondent's Corporation. Telephone calls by the undersigned's secretary to Big Red Waste, Inc.'s last known phone number, which was provided in the Commission's referral packet, have resulted in an oral response that the party at that phone number is not Big Red Waste, Inc. Recently, the Commission determined that Ms. Kiawtkowski has a new personal address. On June 21, 2004, the Petition for Relief and Attachments were returned to the Commission from that address too. The Commission has stated it cannot determine whether Ms. Kiawtkowski ignored the certified mail receipt for this mailing or whether she no longer resides in that area.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 July, 2004. COPIES FURNISHED: 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 Wayne N. Bowers 10951 Laureate Drive, Apartment 601 San Antonio, Florida 78249 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 549 Alachua, Florida 32615 Yvonne Kwiatkowski, President Big Red Waste, Inc. Post Office Box 730981 Ormond Beach, Florida 32173
Findings Of Fact At all times pertinent to the issues herein, the Respondent was an employee of the School Board of Sarasota County having started work there on August 6, 1986. He was a custodian and number one keyholder for the Board's 20 plus building administrative complex. At approximately 5:30 AM on June 20, 1989, Respondent arrived at the complex and started to walk toward building R-21 to unlock it. While he was on his way, he claims, Mr. Basil Mays, the regional assistant director of maintenance came up to him, grabbed him by the arm, and told him to "keep his mouth shut" about a purported alteration of a report of property loss he, Respondent had submitted. In response, Respondent told Mays not to "fuck" with him and walked away to his board-owned vehicle. At this point, Respondent noticed that neither Thomas Crown nor Calvin Albritton, other workers and friends of Mays who usually congregate in the parking lot in the morning, were present. However, they soon arrived and went up to Mays' van to talk. At this point, Respondent walked up, shoved his time card through Crown and Albritton and gave it to Mays. He advised Albritton, with whom he was to work that day, he would meet him at Sarasota High School. He then left to go purchase the ceiling tiles he was to bring to the school for Albritton to install. Respondent completed his tasks that day though his arm bothered him on and off the whole time. Before initially leaving the board grounds, he put cold water on the arm where he had been grabbed and was observed by Mr. Kaze, to whom he reluctantly told the story. Kaze recommended he see a doctor and report the incident to the police. He did not mention the incident to Albritton because they were not close, and though he did try to speak with Mr. Desormier about it at the pizza party held that day, every time he did, Mays would come up. He didn't mention the incident to anyone else at the Board offices. When he finally got to speak with Desormier the next day, he was advised to get the arm checked and if it did not get better, to see Mr. Palmer, head of risk management, about it. During the day of the incident and the next, Respondent tried to do his normal tasks, but was unable to fully do so. He did what he could but was unable to use the arm for any heavy work. He subsequently reported the incident to the police. Mr. Mays was not arrested at that time. On June 22, 1989, Donald W. Donovan, a physician's assistant, treated the Respondent for a large bruise on his right arm with numbness and pain radiating down the arm. His examination showed a 5 centimeter hematoma with nerve involvement in the 4th and 5th fingers which usually is an indication of lateral nerve involvement. Respondent claimed he had been grabbed by his supervisor whose thumb had caused the bruise. In Mr. Donovan's opinion, the injury was consistent with the Respondent's story. Admittedly, though difficult to do, this injury could have been self-inflicted. At the time he saw Otten, he appeared very apprehensive and fearful of repercussions about the incident. As a result, he suggested Respondent see a psychiatrist. He treated Respondent for about a month and prescribed physical therapy. Mr. Mays denies injuring Respondent. He admits, that he asked Otten to increase the value of the theft on his report form because he couldn't account for all missing tools and did not think Otten could account for them, either. He claims, however, that on the day in question he got to work about 5:20 AM and met Crown and Albritton there. When Respondent came up, Mays laid out the work schedule for the day and Otten walked off with one of the men. He had his regional meeting later in the day at which Respondent was present, but indicates they had no conversation. On June 21, 1989 Mays left for New York, remaining there until June 25, 1989. When he got back to work on June 26, 1989, he received a call from city detectives warning him to stay away from Otten. When he asked what this was all about, he was told that Otten had alleged he had grabbed him and was fearful that Mays would retaliate. Mays was not arrested at that time and though he subsequently was apprehended, the matter was dropped because the prosecutor determined the evidence was insufficient to warrant prosecution. Both Mr. Crown and Mr. Albritton saw Respondent on the morning of the alleged assault, after it supposedly happened, and he made no mention of it to them. Albritton claims that though he worked with Respondent all that day, Otten said nothing to him. He saw Otten the next day at Sarasota High School favoring his arm. When he asked what happened, Otten said somebody had grabbed him. This is consistent with Otten's story. Neither Crown nor Albritton are friends of the Respondent. In fact, Crown did not care to work with Otten and admits he may have said he would not be surprised if Otten broke into his own van. After Mays was contacted by the police, he reported the matter to his supervisor, Dr. Francis who asked that Mays write out a statement. Thereafter, Otten filed a notice of injury which required other paperwork and an investigation by the Deputy Superintendent for Human Resources. Dr. Francis then prepared a memo to that officer recommending that Respondent be terminated for filing a false claim of injury and a false report against a supervisor. There is no report of any additional investigation made by Dr. Francis into the incident before making that recommendation. However, before any action was taken, an investigation was conducted by Dr. Price, the Assistant Superintendent for Human Resources, (not made available at the hearing), and after the Respondent's worker's compensation claim was rejected, the Board took its action to terminate him from employment. Respondent claims to never have been in trouble with his employers before this incident. When his van was broken into, he immediately prepared a report of the theft, listing, to the best of his ability, the tools stolen from him. It was this report which Mays asked him to falsify and which was the basis for the incident here. His reputation as a school board employee, at least with Mr. Desormier, formerly a regional custodian manager and now manager of the Board's Custodian Academy is that of a very good and cooperative employee. Desormier never knew Otten not to tell the truth over the approximately 3 1/2 years they worked together. Worker's Compensation benefits were denied Mr. Otten because the Judge of Compensation Claims found that his version of the facts was not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Respondent, Stephen J. Otten, be reinstated as a classified employee. RECOMMENDED this 13th day of December, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0865 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1.-2. Accepted and incorporated herein. 3.-5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 8.-12. Accepted and incorporated herein. 13. Accepted as a restatement of the testimony, but not as dispositive of the issue. 14.-17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 20.-22. Accepted and incorporated herein. 23. Accepted. 24.-25. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact. 4.-10. Accepted. 11.-12. Accepted and incorporated herein. 13.-14. Not proper Findings of Fact. 15. Not a Finding of Fact but a restatement of and comment on the evidence. 16.-17. Accepted and incorporated herein. 18.-19. Accepted and incorporated herein. Accepted but irrelevant. Accepted and incorporated herein. 22.-24. Accepted and incorporated herein. COPIES FURNISHED: Maria D. Korn, Esquire Kunkle & Miller 290 Cocoanut Avenue Sarasota, Florida 34236 Frederick P. Mercurio, Esquire Mercurio & Hogreve 1800 Second Street, Suite 290 Sarasota, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether conviction of income tax evasion in a federal district court in Florida constitutes a violation of Chapter 470, Florida Statutes. If such a conviction is a violation of Chapter 470, Florida Statutes, whether a license nay be revoked or suspended under Chapter 470, Florida Statutes, pending an appeal of such conviction. 3, Whether a hearing on the merits can be heard pending a decision on an appeal of a conviction.
Findings Of Fact Respondent Clarence E. Prevatt holds funeral directors license No. 650 and embalmers license No. 760. Respondent was found guilty by a federal jury on November 14, 1974, of ten counts of willfully and knowingly attempting to evade and defeat a large part of the income tax due and owing by him to the United States of America and adjudged guilty of those crimes by court order dated December 20, 1974. Respondent has appealed his conviction to the United States Circuit Court for Fifth Circuit with oral arguments on said appeal having been heard December 1, 1975. The appeal is still pending. Respondent does not contest the fact of his conviction by a federal jury but contends that a hearing on the merits should not be heard prior to the determination of his appeal of his conviction. The Respondent was charged with the violation of the following subsections of Section 470.12, Florida Statutes: "470.12 Grounds for revocation of license.-- EMBALMER. (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty by a jury of, or has pleaded guilty to after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgement of conviction has been entered by the court having jurisdiction of such cases. * * * (k) The licensee has violated any provision of this chapter. FUNERAL DIRECTOR. (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty of, or has pleaded guilty to, after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases. * * * (p) The licensee has violated any provisions of this chapter." Respondent Prevatt further contends: That a conviction of federal income tax evasion is not a crime in the State of Florida and is not a crime involving moral turpitude and that regardless of the outcome of the appeal his license should not be' suspended or revoked under Section 470.12, Florida Statutes, supra. The Board contends: That a hearing on the revocation should proceed inasmuch as the statute does not require that Respondent be convicted but merely that he be found guilty under Section 470.12(2)(c), Florida Statutes, or that he be found guilty by a jury under Section 470.12(1)(c), Florida Statutes, and that the statutes do not require the Respondent be found guilty of a crime in Florida but merely requires the finding of guilty of a crime "in this state"; that the conviction by a federal jury in the City of Tampa, Florida, is a finding of guilty of a crime in this state; that Florida has laws prohibiting acts of perjury and laws making it a crime to intentionally deprive the true owner of money by false representations; that the condition of filing false and fraudulent income tax returns is an offense involving "moral turpitude"; that the legislature has the right to regulate the moral and character qualifications of professionals and has met the goal by enacting Section 470.12(1)(c), Florida Statutes, and Section 470.12(2)(c), Florida Statutes.
Recommendation It is recommended that embalmer license No. 760 and funeral director license No. 650 of Respondent Clarence E. Prevatt be revoked. DONE AND ORDERED this 2nd day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202 Raymond E. LaPorte, Esquire 408 Madison Street Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS In the Matter of the Revocation or Suspension of the license of Clarence E. Prevatt, licensed, CASE NO. 75-425 Funeral Director and Embalmer 3402 26th Street, Tampa, Florida. /
Findings Of Fact The Petitioner is a manager of real estate specializing in condominiums. It was incorporated in Florida on August 30, 1978, as Property Management, Inc. at the address of its attorney and registered agent, Mr. Michael L. Hyman, Suite 400, 28 W. Flagler Street, Miami, Florida 33130. The corporation was involuntarily dissolved by the Secretary of State on December 5, 1979, for failure to file its annual report and pay its annual report filing fee. Petitioner admits that it was delinquent in submitting its annual report and filing fee, but contends that it was entitled to notice of delinquency prior to involuntary dissolution and reissuance of its corporate name. Through testimony of Petitioner's president and corporate counsel's secretary, who opens and distributes incoming mail, Petitioner established that it had not received any of the three notices discussed below. Rather, Petitioner learned of the dissolution in February, 1980, when it sought telephone service. It then submitted the annual report and filing fee which were received by the Secretary of State on March 17, 1980. By that time the name Property Management, Inc. had been issued to another corporation and was not available. Petitioner was therefore reinstated as Property Management of South Florida, Inc. The following notices relevant to this proceeding were prepared by the Secretary of State: January, 1979: Notices to all Florida corporations that annual reports and filing fees were due by July 1, 1979. September 1, 1979: Reminder notices to delinquent corporations that dissolution would follow if annual reports and filing fees were not submitted within 90 days. December 5, 1979: Certificates of dissolution issued to corporations which failed to submit the reports and filing fees. The above notices were prepared from computer data and were transmitted by ordinary mail. Respondent produced a computer printout with Petitioner's correct name and address showing dissolution on December 5, 1979. However, no evidence was adduced to establish that this notice or either of the preceding notices were actually mailed to Petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's request for return of the name Property Management, Inc. be DENIED. DONE and ENTERED this 29th day of July, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael L. Hyman, Esquire Suite 400 Roberts Building 28 West Flagler Street Miami, Florida 33130 William J. Gladwin, Jr., Esquire Office of the Secretary of State The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent is entitled to contest the forfeiture of his retirement benefits.
Findings Of Fact On December 28, 2006, Respondent sent a Notice of Forfeiture to Petitioner at 2848 Carriage Court, Kissimmee, Florida 34772, via certified mail. Petitioner’s actual residence was not in Kissimmee, but rather located at 2848 Carriage Court, Saint Cloud, Florida 34772. The certified mail receipt for the Notice of Forfeiture was returned unsigned. A printout of the United States Postal Service’s website scanned in as part of Petitioner's file with the Division indicates that the Notice of Forfeiture was delivered on January 6, 2007, in Saint Cloud, Florida 34772. A handwritten notation on the copy of the printout indicates that: “must file petition on or before Jan 29, 2007.” On January 22, 2007, Robert Augustus Harper, who represented himself as counsel for Petitioner, sent a letter to Respondent requesting “all records and documents on Mr. Day.” This letter was stamped as received on January 25, 2007, in Respondent’s records. Respondent’s records do not indicate whether a response was ever sent to Mr. Harper or Petitioner. On April 8, 2009, Petitioner sent a letter to Respondent regarding the appeal of his criminal case, which was stamped as received on April 10, 2009, by Respondent. The letter advised that it was “to update your office of my retirement account with the State.” The letter further stated: At this time I have gone through one appeal process of criminal offences [sic] filed against me, out of the original 15 charges filed 13 has [sic] been reversed or found not guilty by either the Circuit Court or Appeals Court [sic] We are in the process of further appealing the remaining two counts. Enclosed is a letter from my attorney which was sent to you prior to our first appeal. After over 30 years of retirement payments made and a few years paid by myself in the 1970’s I hope this results in a favorable ending to myself. No response was sent to this letter by Respondent. On July 26, 2017, Petitioner met with employees of Respondent and received a copy of the Notice of Forfeiture. At that meeting, an employee of the Division, identified as Mr. Dame, submitted the following electronic inquiry: “Member never received reply to his letter dated April 8, 2009. He would like a reply ASAP. He also would like to know the disposition of his contributions.” On August 9, 2017, Kathy Gould, bureau chief of Benefit Calculations for Respondent, sent Petitioner a letter in response to his inquiry of July 26, 2017. The August 9, 2017, letter from Ms. Gould to Petitioner stated in pertinent part: The Division has reviewed the legal circumstances surrounding the forfeiture of your Florida Retirement System Benefits. On December 28, 2006, a Notice of Forfeiture of Retirement Benefits was sent by certified mail to you. This notice also included a statement of your rights to appeal the forfeiture decision by administrative hearing within 21 days, if you believed your rights under Chapter 121, F.S. were improperly or wrongfully determined. We have no evidence that you filed an appeal with the Division within 21 days. You have $315.89 in employee contributions on deposit. I am enclosing a Request For Refund of Employee Contributions (form FRS- M81) for your completion. Please contact our office if you have any questions or need additional information. On September 18, 2017, Petitioner sent Respondent a letter addressed to Ms. Gould stating in pertinent part: Thank you for your letter dated August 9, 2017. Although your letter indicates that a Notice of Retirement Benefits was sent by certified mail on December 28, 2006, I did not receive the notice. In fact, when I visited with staff of the Division of Retirement on July 26, 2017, I was advised of the existence of the forfeiture notice and provided a copy of the Certified Mail Receipt from my file. Importantly, the receipt is unsigned and the mailing address was incorrect. The file also includes a request from my attorney for a copy of all records and documents related to myself. The letter is dated January 22, 2007. No documents, records, or other response, however, was provided. The timing of the forfeiture letter is very curious to me. At the time the letter was mailed, my convictions were under appeal. A decision was not issued until February 22, 2008. Day v. State, 977 So. 2d 664 (Fla. 5th DCA 2008). That decision reversed all of the convictions for the misdemeanor offenses. The two felony convictions were upheld but, as of the date of the forfeiture letter, they were on appeal and not yet final. My file also includes a letter dated April 8, 2009, from myself to the Division of Retirement advising that the process of further appealing the remaining two felony counts was continuing. The letter attached the previous letter from my attorney requesting a copy of my file. Again, no response from the Division was received. I believe that I have a meritorious argument regarding whether the retirement benefits for my 30-years of service were lawfully forfeited. Under the circumstances, it would be greatly appreciated if you would review my file and advise whether the Division will re-issue the forfeiture letter so as to allow me appropriate notice and an opportunity to contest the determination. The letter was stamped as received by Respondent on September 21, 2017. On October 12, 2017, Respondent, through its Assistant General Counsel Mitchell Herring sent a letter to Petitioner denying his request to reissue the forfeiture letter. The pertinent part of the letter states: I am responding to your letter dated September 18, 2017 addressed to Kathy Gould. Based on a review of the original legal file related to the forfeiture of your retirement benefits, a Notice of Forfeiture of Retirement Benefits was mailed to 2848 Carriage Court, Kissimmee, FL on December 28, 2006 and delivered to that address on January 6, 2007. This was the address that you provided to the Florida Retirement System as your home address, and therefore constituted your address of record. Accordingly, this Notice was effective pursuant to section 120.569, Florida Statutes (2006), and your opportunity to file a petition expired on January 27, 2007. There is no record indicating that a petition was filed. More importantly, our records indicate that the Department was not provided with any notice that an appeal of your criminal conviction was occurring until more than two years after the Notice had originally been sent. Regardless of this, had the appeal overturned all convictions which could have served as the basis for the forfeiture of your retirement benefits, the forfeiture would have been reversed. However, this did not occur, as either of the two convictions for grand theft which still stand are independently sufficient bases for the forfeiture of retirement benefits pursuant to section 112.3173, Florida Statutes (2001-2017), and were included as justification for the forfeiture in the Notice of Forfeiture of Retirement Benefits. Because it has been more than ten years since the Department notified you of its forfeiture of your rights and benefits under the Florida Retirement System, a sufficient basis for the forfeiture still exists, and the Department provided effective notice of its intended action pursuant to law, the Notice of Forfeiture of Retirement Benefits will not be re-issued. At the hearing, Petitioner persuasively testified and offered evidence that he neither received the Notice of Forfeiture in January 2007, nor was aware that such a notice had been issued until his meeting with an employee of the Division near the end of July 2017. When Petitioner obtained a copy of the Notice of Forfeiture during his July 2017 meeting, he noticed that it had an incorrect address, i.e., it was mailed to Kissimmee instead of St. Cloud. Kissimmee and St. Cloud are distinct cities and the only two incorporated cities in Osceola County. Petitioner further explained that his home in St. Cloud was located about a quarter-mile down a private dirt road from a county-maintained road. His home was situated on five acres, with a fence surrounding the property and a locked gate at the driveway. He purchased the property in 2001 and resided there until 2011. Petitioner testified that all of the mailboxes for homes on the private dirt road were clustered together and located at the end of the road where it intersected with the county-maintained road. Anyone from the post office would have been unable to access Petitioner's home because of the fence and locked gate. Petitioner also had a “cur dog” that would not let anybody on the property. The other individuals residing in Petitioner's home in January 2007 were his wife and daughter. Petitioner's wife worked during the week and his daughter went to school and worked part-time. Petitioner testified that there would have been no one around during the week to receive any certified mail delivered at his home from the post office. There were occasions where the post office would leave certified mail slips in Petitioner’s mailbox at the end of the road. On such occasions, Petitioner would go into town to the post office to pick them up. Petitioner did not recall, however, the delivery of, or anyone showing up at his home with, a certified mail letter from the Division. The fact that Petitioner was aware that his criminal convictions could impact his ability to obtain retirement benefits does not demonstrate that he received the Notice of Forfeiture in January 2007. Petitioner acknowledged that he never asked for his deferred retirement option program (DROP) proceeds to be distributed. However, when asked why he sent his letter in April 2009, advising the Division of the status of his appeals and post-conviction efforts, if he was unaware of the forfeiture letter, Petitioner explained that he was still able to work, he was not 62 at the time, and that he wanted to let the Division know that he was still out there. Petitioner further explained that he informed the Division about the status of his appeals because he thought that he could receive his retirement benefits if he won in the appeal process. Petitioner's testimony that he did not receive the Notice of Forfeiture until his meeting with a Division employee in July 2017 was credible. The location and physical description of Petitioner’s home was uncontested and it appears unlikely that the postal service would have been able to deliver the certified mail to Petitioner. Other than the printout of the United States Postal Service website indicating that the Notice of Forfeiture was delivered on January 6, 2007, in St. Cloud, Florida, the Division produced no evidence that Petitioner, in fact, received it. The absence of a signed receipt, when considered with the postal service’s Track and Confirm printout indicating delivery, could, at best, suggest that Petitioner deliberately failed to pick up the certified mail letter. If delivered to St. Cloud, it is plausible that the certified mail slip was placed in the wrong mailbox. The evidence is insufficient, however, to show that Petitioner refused to accept the certified mail letter. The Division’s records do not include any notation that the certified mail was undeliverable or refused. Considering the evidence in light of all of the surrounding facts and circumstances, it is found, as a matter of fact, that the evidence is insufficient to show that Petitioner received the Notice of Forfeiture in January 2007. The Department presented no testimony regarding the practices and policies of the Division when the Notice of Forfeiture was issued. Division employees who were historically involved with Petitioner’s retirement forfeiture issues have either retired or obtained employment elsewhere. The deposition testimony of Mary Katherine Gould, the present bureau chief of the Division’s Benefit Calculations, discussed the Division’s current practice regarding unsigned certified mail receipts for notices of forfeiture. Ms. Gould testified that, currently, additional efforts are undertaken to locate the member and additional certified mailings are attempted to obtain the member’s signature on the return receipt. She also indicated that current practice would include further review of a member’s file to discover any other addresses. Petitioner’s retirement file with the Division shows that the general counsel for the Department at the time was aware that the certified mail return receipt was neither signed nor dated. And, there is nothing in the file indicating that Petitioner was avoiding delivery of the certified mail. Based on her review of Petitioner’s file, Ms. Gould could not determine whether any additional efforts had been made to search for a different address to attempt another certified mail delivery. Had the Division reviewed its own files, it could have easily discovered Petitioner’s correct mailing address. There are letters, applications, and other retirement form submittals within Petitioner’s file reflecting that his correct mailing address at the time was 2848 Carriage Court, St. Cloud, Florida 34772. For example, there are several documents from Petitioner related to his DROP application and submittals that contain his correct mailing address. His file also contains several letters and documents mailed from the Division to Petitioner at his correct address. The Division’s file for Petitioner further reveals that it received the public records request by Petitioner’s attorney, Robert Harper, on January 25, 2007. At the hearing, Petitioner explained that he had retained Mr. Harper to represent him in the appeals of his convictions, which were ongoing at the time of the public records request. Petitioner also asked Mr. Harper to help him “keep track of . . . the retirement part.” There is no evidence that the Department ever responded to Mr. Harper’s request. According to practice, the Division calendars the 21-day time period for the challenge of a forfeiture as commencing on the date the notice is received by the member. Although there is no certified mail return receipt, the purported delivery date of the Notice of Forfeiture indicated by the postal service was January 6, 2007. Therefore, had Petitioner actually received the Notice of Forfeiture, there was still time for Petitioner to contest the forfeiture, when the Division received the public records request by Mr. Harper on January 25, 2007. On January 30, 2007, five days after Mr. Harper’s public records request, the Division sent a memorandum to the General Counsel’s office. The subject of the memorandum is “Request for OGC Assistance with Public Records Request." The memo specifically advised that the public records request was for a copy of Petitioner’s retirement file and that there was a “legal block of Mr. Day’s retirement account because of possible forfeiture. There should be a file in the Legal Office.” An interoffice memorandum regarding the matter from Sarabeth Snuggs, director of the Division, to Geoffrey Christian, Office of General Counsel, dated February 1, 2007, states, in part: The return receipt was neither signed nor dated. However, according to the postal service’s track and confirm website, the letter was delivered on January 6, 2007. The member has failed to protest the forfeiture action within the 21-day time limit. The benefits are now forfeited and the legal file is closed. In other words, even though the certified mail receipt was returned unsigned, and despite the fact that the Division and its general counsel were aware of the pending unanswered public record’s request from Petitioner’s counsel, the Division closed Petitioner’s file on the grounds that Petitioner failed to timely challenge the forfeiture. Regarding Petitioner’s meeting with Division employee, Mr. Dame, on July 26, 2017, Petitioner provided undisputed and persuasive testimony that Mr. Dame provided him with a copy of the Notice of Forfeiture, the certified mail return receipt, and the Postal Service Track and Confirm printout. During the meeting, Mr. Dame pointed out the fact that the return receipt was unsigned. At the time, Mr. Dame also advised Petitioner that he was going to send an inquiry regarding the issue and that Petitioner should “sit tight, we’ll see what happens.” Mr. Dame never advised Petitioner that his 21-day time period to challenge the forfeiture letter would re-commence based upon the fact that Petitioner received a copy of the Notice of Forfeiture during that July 2017 meeting. Petitioner filed the Petition in this case in response to the letter from the Department’s Assistant General Counsel Mitchell Herring, dated October 12, 2017, because it had a case number on it. The letter referenced Petitioner’s September 18, 2017, letter and “OGC Case No. 17-36457.” Prior to that time, Petitioner's understanding was that the Division was investigating the circumstances surrounding his forfeiture letter. Based upon these facts, it is found that the Department never provided Petitioner with a clear point of entry within which to contest the forfeiture of his retirement benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, either reissue the Notice of Forfeiture of Retirement Benefits to Petitioner or otherwise allow him a point of entry with a 21-day time period within which to contest the forfeiture of retirement benefits. DONE AND ENTERED this 14th day of May, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2015.
Conclusions This case came before me for the purpose of issuing a final agency order. The Administrative Law Judge, Stephen F. Dean, assigned by the Division of Administrative Hearings (DOAH) to the above-styled case, entered his Recommended Order dated June 4, 2004. In the Recommended Order, the Administrative Law Judge explained that the Division of Retirement could not process the Petitioner’s Petition for Benefits absent a judicial order issued by a court of competent jurisdiction determining heirs and a judicial order of guardianship of minor heirs. At the time the Recommended Order was issued, the Petitioner had not submitted either order to the Division of Retirement. The Administrative Law Judge recommended that the Division of Retirement allow the Petitioner to submit the required judicial orders within 45 days of the date of the order. In addition, the Administrative Law Judge recommended the Division’s dismissal of the Petition for Benefits, upon Petitioner's failure to provide the judicial orders within the 45 day time period. Prior to the Administrative Law Judge’s Recommended Order, the Petitioner submitted an Order Determining Beneficiaries to the Division of Retirement. Rather than submit the judicial orders identified by the Administrative Law Judge in response to the Recommended Order, the Petitioner filed a Notice of Exception stating that documents submitted prior to the Recommended Order fulfilled the requirements of the Recommended Order. Those documents were part of the application for benefits that the Administrative Law Judge determined are inadequate to support the Petition for Benefits. Because the exception is not responsive to the Recommended Order, it is rejected. The Division hereby adopts and incorporates by reference the Recommended Order issued by the Administrative Law Judge on June 4, 2004. A copy of that Recommended Order is attached hereto and made a part hereof as “Exhibit A.” Based upon the foregoing, it is ORDERED and DIRECTED that the application filed by Lavondra Steadman o/b/o John Steadman is rejected and the request for retirement benefits is hereby Denied. DONE and ORDERED this A k day of l , 2004, at Tallahassee, Leon County, Florida. Soult. Serra SARABETH SNUGGS ~~ State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 (850) 488-5541
The Issue Is the practice of the Respondent, Agency for Health Care Administration (Agency), to decline Medicaid-funded compensation for emergency medical services provided to undocumented aliens once the patients have reached a point of stabilization an unpromulgated rule? The Petitioners' Proposed Final Order identifies the Agency's use of limited InterQual criteria to determine medical necessity as an issue in this proceeding. But the Petition for Determination of Invalidity of Non-Rule Policy does not raise this issue. Neither party's pre-hearing statement identifies it as an issue. Consequently, this Order does not consider or determine whether the Agency's limitation on the use of InterQual criteria is an "unpromulgated rule."
Findings Of Fact Proceedings Before the Division of Administrative Hearings and the First District Court of Appeal In the beginning this was an action by the Hospitals aimed at stopping Agency efforts to recoup reimbursement of Medicaid payments to the Hospitals for emergency services provided to undocumented aliens once the patients have reached a point of “stabilization.” The issue of whether the Agency could apply the “stabilization” standard to the Hospital claims for Medicaid payment for services provided indigent aliens recurred in Agency claims against hospitals throughout the state to recoup Medicaid payments. Hospitals challenged Agency claims in individual proceedings under section 120.569, which the Agency referred to the Division for disputed fact hearings. Duane Morris, LLP (Duane Morris), led by Joanne Erde, represented the hospitals in the individual proceedings. The Hospitals collectively engaged Duane Morris to represent them in this proceeding challenging the Agency’s stabilization standard as an unpromulgated rule. Joanne B. Erde, Donna Stinson, and Harry Silver were the Hospital’s lawyers in this proceeding. Ms. Erde is an experienced lawyer who has focused her practice in health care. Ms. Stinson is an experienced lawyer who concentrated her practice in health care and administrative law litigation before the Division. The Agency does not question their expertise. Mr. Silver is an experienced lawyer with no Florida administrative law experience. His role in the case was minimal. Depositions taken in one of the individual reimbursement cases were significant evidence in this proceeding. Those depositions make it clear that the Hospitals’ counsel was tuned into the unpromulgated rule issue and using discovery in that case to gather and identify the evidence that they would need in this case. Representation of the Hospitals in individual reimbursement actions provided Hospitals’ counsel the advantage of preparing with level of detail before filing the petition. The engagement letters recognize this stating: “We have an understanding of the facts underlying this matter and have substantial knowledge concerning the law governing the issues in this case.” This well-developed understanding of the facts should have minimized the need for discovery and preparation in this proceeding. Counsel were well positioned to prosecute this matter efficiently. Likewise, counsel’s “substantial knowledge concerning the law governing the issues in this case” should have minimized the need for time spent in research. This is not what happened. The pre-existing representation in the reimbursement cases provided another obvious and significant benefit to the Hospitals and their counsel. Since counsel represented the individual hospital in the separate reimbursement matters, the Hospitals could band together to jointly finance one case that would resolve the troublesome point of “stabilization” issue more consistently and more cheaply than if they litigated it in each and every case. As the basically identical engagement agreements between each hospital and counsel state: “Because many hospitals’ interests in [sic] are similar or identical as it relates to the Alien Issue and in order to keep legal costs to a minimum, each of the participants in the [hospital] Group will [sic] have agreed that it wishes this firm to represent them in a Group.” Because of counsel’s pre-existing relationships with the Hospitals, litigating this matter should have continued or enhanced the client relationships. The time required for this matter could not result in lost business opportunities. In fact, by consolidating the issues common to all the clients and their cases, counsel freed up time to work on other matters. Presentation of the issue for resolution in a single case also saved the Hospitals the greater cost of disputing the issue in each case where the Agency sought reimbursement. The Hospitals and counsel dealt with the only possible downside of the representation by including disclosures about joint representation and a waiver of conflict claims in the engagement letters. This was not a contingent fee case. The agreement provided for monthly billing and payment from counsel’s trust account. Each group member made an initial payment of $10,000 to the trust account. Any time the trust account balance dipped below $15,000, each group member agreed to contribute another $10,000 to the trust account. For counsel, this representation was about as risk free as a legal engagement can be. The Hospitals and their counsel knew from the outset that they would have to prove their reasonableness of their fees and costs if they prevailed and wanted to recover fees. The Petition for Determination of Invalidity of Non-Rule Policy seeks an award of fees and costs. They could have adjusted their billing practices to provide more detail in preparation for a fees dispute. An "unpromulgated rule challenge" presents a narrow and limited issue. That issue is whether an agency has by declaration or action established a statement of general applicability that is a "rule," as defined in section 120.52(16), without going through the required public rulemaking process required by section 120.54. The validity of the agency's statement is not an issue decided in an "unpromulgated rule challenge." Courts have articulated the legal standards for unpromulgated rule challenges frequently. See, e.g., Coventry First, LLC v. Off. of Ins. Reg., 38 So. 3d 200, 203 (Fla. 1st DCA 2010); Dep’t of Rev. v. Vanjaria Enters., 675 So. 2d 252 (Fla. 5th DCA 1996); and the cases those opinions cite. The facts proving the “stabilization” standard were easy to establish. Many Agency documents stated the shift to the “stabilization” standard. Documents of Agency contractors did also. Two examples of how clear it was that the Agency was applying a new standard were the Agency’s statements in its 2009-2010 and 2010-2011 reports to the Governor on efforts to control Medicaid fraud and abuse. The reports describe the “stabilization” standard as “more stringent” and certain to recover millions of dollars for the Agency. As the Agency’s reports to the Governor indicate, the stakes were high in this matter. For the Hospitals and other hospitals collectively affected by the Agency’s effort to recoup past payments by applying the “stabilization” standard, $400,000,000 was at stake. This matter did not present complex or difficult issues, legally or factually. The Order of Pre-Hearing Instructions requiring parties to disclose documents and witnesses and update the disclosures alleviated the discovery demands present in other litigation. The Agency’s failure to fully comply with the pre- hearing instructions and unfounded Motion in Limine added some additional time demands for the Hospital’s counsel. Nonetheless the issues were narrow, and the facts were essentially undisputed, if not undisputable. This matter did not require extraordinary amounts of time for discovery or preparation. Ordinarily challenges to rules or unpromulgated rules impose time pressures on the attorneys because of the requirement in section 120.56 that the hearing commence within 30 days of assignment to the Administrative Law Judge. The time constraint was not a factor in this case. The Hospitals requested waiver of the time requirement to permit more time for discovery. The Agency agreed, and the undersigned granted the request. Thus the Hospitals had the time their counsel said they needed to prepare for the hearing. The appeal imposed no time constraints. Both parties received extensions of time for their filings. Seventeen months passed between filing the notice of appeal and oral argument. Time for the Administrative Proceeding The total number of hours claimed for the services of the three lawyers, their claimed hourly rate, and the total fees claimed appear below. Joanne B. Erde 458.20 hours $550.00 rate $252,010.00 Donna Stinson 136.20 hours $455.00 rate $61,971.00 Harry Silver 93.40 hours $550.00 rate $51,370.00 Total 687.80 hours $365,351.00 The Hospitals’ counsel’s billing records are voluminous. For the proceeding before the Division, the Hospitals’ counsel’s invoices list 180 billing entries for the work of three lawyers. A substantial number of the entries are block billing. In block billing, all of a lawyer’s activities for a period of time, usually a day, are clumped together with one time total for the entire day’s service. It is an acceptable form of billing. But block billing presents difficulties determining the reasonableness of fees because a single block of time accounts for several different activities and the invoice does not establish which activity took how much time. Here are representative examples of the block billing entries from the Division level invoices: August 20, 2012 (Erde) – Conference call with ALJ; telephone conference with AHCA attorney; telephone conference with newspaper reporters – 2.0 hours September 16, 2012 (Erde) – Review depositions; prepare opening remarks; develop impeachment testimony – 5.50 September 27, 2012 (Erde) – Intra-office conference; finalize interrogatories; work on direct – 8.50 October 2, 2012 (Stinson) – Review and revise Motion in Limine; Telephone conferences with Joanne Erde and Harry Silver; review emails regarding discovery issues - `2.60 October 19, 2012 (Erde) – Intra-office conference to discuss proposed order; Research Re: other OIG audits; research on validity of agency rules – 2.10 hours November 9, 2012 (Erde) – Conference with ALJ; Intra-Office conference to discuss status; further drafting of proposed order – 7.70 hours. November 19, 2012 (Stinson) – Final Review and Revisions to Proposed Final order; Telephone conferences with Joanne Erde to Review final Changes and comments; Review AHCA’s proposed order and revised proposed order – 3.20 hours. Many of the entries, block or individual, do not provide sufficient detail to judge the reasonableness of the time reported. “Prepare for deposition and hearing,” “review depositions,” “review new documents,” “review draft documents,” “intra-office conference” and “attention to discovery” are recurrent examples. Senior lawyers with more expertise and higher billing rates are expected to be more efficient. This, the fact that the matter was not complicated, the relative simplicity of the issue, and the fact that the Hospitals’ counsel already had a great deal of familiarity with the facts and law involved, all require reducing the number of hours compensated in order for them to be reasonable. For this matter, in these circumstances, the claimed number of hours is quite high. The claimed 687.80 hours amounts to working eight hours a day for 86 days, two of which were the hearing. This is not reasonable. A reasonable number of hours for the proceedings before the Division is 180. That is the equivalent of 22.5 eight-hour days. That is sufficient to handle the matter before the Division from start to finish. The number includes consideration of the worked caused by the needless difficulties presented by the Agency in discovery and with its Motion in Limine. Time for the Appellate Proceeding The fees that the Hospitals seek for the appeal are broken down by hours and rates as follows: Joanne B. Erde 255.10 hours $560.00 $142,856.00 Joanne B. Erde 202.80 hours $580.00 $117,624.00 Donna Stinson 88.50 hours $460.00 $40,710.00 Donna Stinson 67.10 hours $500.00 $33,550.00 W.D. Zaffuto 48.30 hours $435.00 $21,010.50 Rob Peccola 10.90 hours $275.00 $2,997.50 Rob Peccola 17.50 hours $300.00 $5,250.00 L. Rodriguez- Taseff 6.20 hours $520.00 $3,224.00 L. Rodriguez- Taseff 19.50 hours $545.00 $10,627.50 Rachel Pontikes 38.20 hours $515.00 $19,673.00 Total 754.10 hours $397,522.50 For the appellate proceeding, the invoices present 341 entries, a substantial number of which are block billing for work by six lawyers. Here are representative examples from the appellate level invoices: May 16, 2013 (Erde) – Reviewed AHCA’s initial brief; intra- office conference to discuss; preliminary review of record – 2.90 May 24, 2013 (Erde) – Intra-office conference to discuss response to brief; preparation to respond to brief – 2.50 May 30, 2013 (Erde) – Attention to Appeal issues; finalize request for extension; brief research re jurisdictional issues – 1.60 June 18, 2013 (Peccola) – Strategy with J. Erde regarding research needs; review/analyze case law cited in answer brief; conduct legal research regarding documentary evidence and exhibits on appellate review; write email memo to J. Erde regarding same – 2.00 July 19, 2013 (Zaffuto) – Revise/draft Answer Brief; discuss extension of time with H. Gurland; research appellate rules regarding extension of time and staying proceedings pending ruling on motion; review appendix to answer brief; instructions to assistant regarding edits and filing of answer brief and appendix prepare answer brief for filing; call to clerk regarding extension of time review initial brief by AHCA and final order by ALJ – 5.50 August 14, 2013 (Erde) – Intra-office conference to discuss brief; further revised brief – 5.80 August 15, 2013 (Stinson) Reviewed appellees' answer brief; discussed language in answer brief with Joanne Erde – 2.50 October 9, 2013 (Stinson) – Review draft motion to relinquish regarding admission of exhibit; exchange e-mails with Joanne Erde; telephone conference with Joanne Erde – 1.60 October 10, 2013 (Erde) – Attention to new motion re relinquishing jurisdiction; review of revisions; further revisions – 6.00 October 30, 2013 (Erde) – Research re: AHCA’s current behavior; intra-office conference to discuss status of action at DOAH - .70 November 7, 2013 (Peccola) – Strategy with J. Erde regarding Appellees’ response in opposition to Appellant’s motion for supplemental briefing; conduct research regarding same; draft same; look up 1st DCA local rule on appellate motions and email same to J. Erde – 3.60 December 5, 2013 (Erde) – Research Re: supplemental briefing issues; research to find old emails from AHCA re: inability to produce witnesses -.90 January 21, 2014 (Rodriguez-Taseff) – Working on Supplemental Answer Brief – legal argument re authentication and cases distinguishing marchines [sic]; editing facts – 6.70 February 3, 2014 (Erde) – Review and revise response to motion for further briefing; intra-office conference to discuss same – 2.20 May 2, 2014 (Pontikes) – Continue to review relevant case law regarding the definition of an unpromulgated rule; continue to analyze the briefs and the arguments; continue to draft an outline of the argument discussed – 5.00 June 5, 2014 (Erde) – draft email to group regarding AHCA’s settlement offer; reviewed supplemental settlement offer from AHCA; draft email to group re same – 1.70 June 11, 2014 (Erde) – Attention to finalizing response to AHCA’s notice of dismissal and filing of fee petition; memo to members of group – 8.00 July 21, 2014 (Erde) – completed motion for rehearing re: fees as sanctions; drafted status report for DOAH regarding status of DCA opinion; drafted status report in companion case; emails with AHCA re: withdrawing pending audits – 6.90 July 21, 2014 (Peccola) – Strategy with D. Stinson and J. Erde regarding motion for rehearing; revise/edit same; review/revise edit notices in trial court 1.20. The descriptive entries in the invoices for the appellate representation also lack sufficient detail. Examples are: “begin preparation to respond to AHCA”s brief,” “attention to appeal issues,” “preparation to draft answer brief,” and “research and draft answer brief.” For the appellate proceedings, Duane Morris added four lawyers, none with experience in Florida administrative or appellate matters. W.D. Zaffuto, L. Rodriguez-Taseff, and Rachel Pontikes are senior level lawyers in Duane Morris offices outside of Florida. Rob Peccola is a junior level lawyer from a Duane Morris office outside of Florida. The apparent result is those lawyers spending more time on issues than the more experienced Ms. Erde and Ms. Stinson would. One example of this is a July 19, 2013, billing entry where a lawyer spent time researching “appellate rules regarding extension of time and staying proceedings pending ruling on motion.” The two lawyers primarily responsible for this matter, both laying claim to Florida appellate expertise, would only need to quickly check the Florida Rules of Appellate Procedure to confirm their recollection of the rules, something that would probably take less time than it took to make the time entry and review the draft bill. Hospitals’ also filed a puzzling motion that presents a discreet example of needless attorney time billed in this matter. The Hospitals expended 21.8 hours on a Motion for Rehearing of the court’s order awarding them fees and costs. The court’s opinion and the Final Order stated that fees and costs were awarded under section 120.595(4)(a), Florida Statutes. Yet the Hospitals’ motion fretted that fees might be assessed under section 120.595(4)(b), which caps fees at $50,000. The court denied the motion. Two things stand out when reviewing the invoices for the appellate proceeding. The first is that the appeal took more hours than the trial proceeding. A trial proceeding is generally more time-consuming because of discovery, a hearing much longer than an oral argument, witness preparation, document review, and preparing a proposed order. The second is the sheer number of hours. Hospitals’ counsel seeks payment for 754.10 hours in the appellate proceeding. This is 66.3 more than for the Division proceeding. It included a two day hearing, trial preparation, research, and preparing a 37 page proposed final order. In eight-hour days the claimed hours amount to a staggering 94.26 days. That amounts to one lawyer working on the appeal for eight hours a day for three months. Of this time, 613.5 hours were spent by Ms. Erde and Ms. Stinson, lawyers with expertise in the subject area, who had prepared the case for hearing, who participated in the hearing, who closely reviewed the entire record for preparation of their proposed final order, who researched the issues before the hearing and for the proposed final order, and who wrote the proposed final order. With all this knowledge and experience with the record and the law, handling the appeal should have taken less time than the proceeding before the Division.2/ One factor supports the appellate proceeding taking as many hours, or a few more hours, than the administrative proceeding. It is the Agency’s disputatious conduct over a scrivener’s error in the Final Order which erroneously stated that the Agency’s Exhibit 1 had been admitted. The Agency’s conduct increased the time needed to represent the Hospitals in the appeal. The Agency relied upon the exhibit in its initial brief, although it twice cited page 359 of the transcript where the objection to the exhibit was sustained. Also the Agency’s and the Hospitals’ proposed final orders correctly stated that Agency Exhibit 1 had not been admitted. The Hospitals’ Answer Brief noted that Agency Exhibit 1 had not been admitted. The transcript of the final hearing and both parties’ proposed final orders were clear that the exhibit had not been admitted. Yet the Agency argued in its Reply Brief that it had been. This required the Hospitals to move to remand the case for correction of the error. The Agency opposed the motion. The court granted the motion. The Final Order was corrected and jurisdiction relinquished back to the court. The Agency used this as an opportunity to trigger a new round of briefing about whether Exhibit 1 should have been admitted. This has been considered in determining the reasonable number of hours for handling the appeal. A reasonable number of hours for handling the appeal is 225. Converted to eight-hour days, this would be 28.13 days. For the appeal, Duane Morris attributes 28.4 hours of the work to a junior lawyer. This is 3.8 percent of the total time claimed. Applying that percentage to 225 hours, results in 8.6 hours attributed to the junior lawyer with the remaining 216.45 hours attributed to senior lawyers. Attorneys and Fees Each party presented expert testimony on the issues of reasonable hours and reasonable fees. The Agency presented the testimony of M. Christopher Bryant, Esquire. The Hospitals presented the testimony of David Ashburn, Esquire. As is so often the case with warring experts, the testimony of the witnesses conflicts dramatically. Mr. Bryant opined that a reasonable rate for senior lawyers, such as Ms. Erde and Ms. Stinson, ranged between $350 and $450 per hour. The reasonable rate for junior lawyers was $200 per hour. Mr. Ashburn opined that the reasonable hourly rate for senior lawyers ranged between $595 and $700 and the reasonable rate for junior lawyers was between $275 and $300. The contrast was the same for the opinions on the reasonable number of hours needed to handle the two stages of this litigation. Mr. Bryant testified that the administrative proceeding should have taken 150 to 170 hours and that the appeal should have taken 175 to 195 hours. Mr. Ashburn testified that the Hospitals’ claimed 687 hours for the proceeding before the Division and 754.10 hour for the appellate proceeding were reasonable. The Hospitals argue that somehow practicing in a large national law firm, like Duane Morris justifies a higher rate. The theory is unpersuasive. A national law firm is nothing special. There is no convincing, credible evidence to support a conclusion that lawyers from a national firm in comparison to smaller state or local firms provide better representation or more skilled and efficient lawyering that justifies a higher rate. Based upon the evidence presented in this record, a reasonable rate for the senior lawyers participating in this matter is $425 per hour. A reasonable rate for the junior lawyer participating in this matter is $200.00. Fee Amounts A reasonable fee amount for representation in the proceeding before the Division of Administrative Hearings is $76,500. A reasonable fee amount for the proceeding before the First District Court of Appeal is $93,701.25. Costs Hospitals seek $6,333.63 in costs. The evidence proves these costs are reasonable. The Agency does not dispute them.
Findings Of Fact The petitioners, Leo A. Price and Elizabeth R. Price, are husband and wife. They have been members of the Florida retirement System (FRS) since their transfer on January 1, 1979. Previously, the petitioners were members of the Teachers' Retirement System (TRS) Plan D. In order to transfer to FRS, they moved from TRS Plan D, to TRS Plan E, on December 31, 1978, and then into FRS on January 1, 1979. In transferring from TRS to FRS, a member is entitled to a refund of excess TRS contributions. In early 1979, Mr. Price received refund warrants totalling $16,060.61 which represented TRS contributions of $10,138.73 and accrued interest of $5,921.88. In early 1979, Mrs. Price received refund warrants totalling $17,515.03 which represented TRS contributions of $11,383.91 and accrued interest of $6,131.12. The petitioners failed to cash these refund warrants and to date have not negotiated them. In November, 1979, the petitioners visited the Division of Retirement and discussed the cashing of these warrants based on questions of taxation. This discussion was followed by a letter dated December 30, 1979, to A. J. McMullian III, State Retirement Director, in which the petitioners again discussed the taxation questions and advised the respondent that they had not cashed the warrants. They asked that new warrants be issued and that they be paid interest on the amount of the warrants for the period of time from the issuance to the cashing of the warrants. By letter dated January 25, 1980, Mr. McMullian advised the petitioners to cash the warrants and further told petitioners that interest could not be paid. In their petition for an administrative hearing, the petitioners alleged that they were under-refunded; however, at the hearing the parties stipulated that only two issues are presented for resolution: Whether the petitioners are entitled to interest on their contributions from July 1, 1978, through December 31, 1978, and Whether the petitioners are entitled to interest on the total amount of the uncashed warrants from the date of issuance to the present. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, Section 238.10, Florida Statutes, has consistently been construed as providing for the payment of interest on contributions based on a fiscal year. The fiscal year is from July 1 to June 30. On June 30 of each year, interest is calculated on the total accumulated contributions then on deposit. If no contributions are on deposit on June 30, no interest is credited for this fiscal year. Since the petitioners received refunds of excess accumulated contributions on December 31, 1978, no interest was paid for the 1978-79 fiscal year because no contributions were on deposit on June 30, 1979. At the time that refund warrants are issued, the funds backing the warrants are transferred from the retirement system trust fund to the Treasurer's Office and the Division earns no more interest on these funds. The petitioners contend that they were advised by Leon Burnett of the Division of Retirement not to cash the warrants in their possession pending the outcome of this case. Ruth Sansom testified that it is standard practice to advise members not to cash benefit warrants if the amount of the benefit is in question, but that refund warrants may be cashed and adjustments made in the future. In a separate case (Case No. 80-1029), Mr. Price is challenging the amount of his benefit warrants. However, at the hearing in this case the petitioners did not understand the difference between a refund warrant and a benefit warrant, although this subject was discussed at their November, 1979, meeting with Mr. Burnett, and Mr. Price had in his possession both refund warrants and benefit warrants which had not been cashed.
Recommendation BASED UPON the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Leo A. Price and Elizabeth R. Price, seeking interest on their contributions for the period of time from July 1, 1978, through December 31, 1978, be denied. It is further RECOMMENDED that the claim of the petitioners, Leo A. Price and Elizabeth R. Price, for interest on the total amount of their uncashed warrants from the date of issuance, be denied. THIS RECOMMENDED ORDER entered on this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-1779 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price and Elizabeth R. Price 1000 N.E. 96th Street Miami, Shores, Florida 33138 Diane R. Keisling, Esquire Cedars Executive Center Suite 207C, Box 81 2639 North Monroe Street Tallahassee, Florida 32303
The Issue Whether Petitioner, by pleading no contest to four counts of petit theft, in violation of Section 812.014(2)(e), Florida Statutes, despite steadfastly maintaining her innocence, must forfeit her rights and benefits under the Florida Retirement System, pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Respondent Division of Retirement is charged with the responsibility of managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. (Joint Stipulation of Fact 1.) FRS is a public retirement system as defined by Florida law. As such, Respondent had deemed its action regarding the forfeiture of Petitioner's rights and benefits under FRS subject to administrative review. (Joint Stipulation of Fact 2.) Petitioner is a senior management service class member of FRS. (Joint Stipulation of Fact 3.) At all times material to the allegations of this case, Petitioner was employed by the Town of Callahan as a planning and zoning administrator. (Joint Stipulation of Fact 4.) On or about August 23, 2005, the State Attorney for the Fourth Judicial Circuit, through an assistant, filed a Third Amended Information charging Petitioner with (a) one (1) count of grand theft, contrary to the provisions of Section 812.014(2)(c), Florida Statutes; (b) two (2) counts of grand theft, contrary to the provisions of Section 812.014(2)(b)1., Florida Statutes; (c) nineteen (19) counts of official misconduct, contrary to the provisions of Section 839.25(1), Florida Statutes; and (d) one (1) count of petit theft, contrary to the provisions of Section 812.014(2)(e), Florida Statutes. (Joint Stipulation of Fact 5.) The events that formed the basis for the Third Amended Information occurred during Petitioner's tenure as an employee of the Town of Callahan. (Joint Stipulation of Fact 6.) The Third Amended Information outlines the violations to which Petitioner pled no contest and provides, in pertinent part, as follows: COUNT 1: BARBARA F. BOONE on or between May 10, 2001 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency or gasoline, the value of $300.00 or more but less than $20,000.00, the property of the TOWN OF CALLAHAN, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefits therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . COUNT 2: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than $100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with El Nino Community Development Block Grant 00DB-6M- 04-55-02-G16, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or the use of any person not entitled thereto . . . COUNT 3: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than $100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with Housing Rehabilitation Community Development Block Grant 00DB-6B-04-055-02-H09, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . * * * COUNT 23: BARBARA F. BOONE on or between October 1, 2000 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use, or endeavor to obtain or use U.S. currency or cellular phone service, valued at One-Hundred Dollars ($100.00) or more but less than Three- Hundred Dollars ($300.00), the property of THE TOWN OF CALLAHAN, with intent to, either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . (Joint Stipulation of Fact 9.) Count 1 related to alleged misuse of a City gasoline credit card. Count 2 related to alleged dual billing of hours for the El Nino Block Grant. Count 3 related to alleged dual billing of hours for the HUD Block Grant. Count 23 related to alleged misuse of a City cell phone. (Exhibit 4: Circuit Court Hearing Transcript, pages 10-12.) Petitioner had filed a civil action against the City concerning all these issues before she was charged with them as crimes. (Exhibit 9: Informal Hearing Transcript, page 13.) On or about March 7, 2006, Petitioner entered a plea agreement with the State of Florida, wherein she acknowledged she would plead no contest (nolo contendere), while maintaining her innocence, to the "lesser included" offense of petit theft contained in Counts 1, 2, 3 and 23 of the Third Amended Information. The agreement provided, however, that Counts 1, 2, and 3 would be reduced to the lesser-included misdemeanor counts of petit theft, in violation of the provisions of Section 812.014(2)(e), Florida Statutes, and Counts 4 through 22 would be dismissed. (Joint Stipulation of Fact 7.) The first sentence of the plea agreement reads as follows: I hereby enter my plea of no contest for the reason it is in my best interest although I maintain my innocence. (Joint Stipulation of Fact 8.) On or about March 7, 2006, Petitioner pled no contest in accordance with the terms of the plea agreement. (Joint Stipulation of Fact 10.) During the plea dialogue, which included inquiry by the circuit judge taking the plea to ascertain if the accused understood the charges and was entering the plea voluntarily, Petitioner articulated that she was innocent of all charges. (Exhibit 4: Circuit Court Hearing Transcript, pages 5-13.) In accepting a nolo contendere plea and its concomitant plea agreement, a circuit judge is required to inquire and determine if there is a "factual basis" for the charges. To those types of questions at Petitioner’s plea dialogue Petitioner's counsel replied: . . . just for our purposes we do not agree that any of those facts are true, but we do agree, if they were true they would constitute a sufficient factual basis. (Exhibit 4: Circuit Court Hearing Transcript, pages 12-13.) The circuit judge then stated on the record: The Court finds that there is sufficient factual basis to support the pleas, and that the pleas have been entered into freely, willingly, and voluntarily. (Exhibit 4: Circuit Court Transcript, page 13.) Judge Robert Foster, Circuit Court Judge in the Circuit Court of the Fourth Judicial Circuit, in and for Nassau County, Florida, ordered that adjudication of guilt be withheld for good cause shown. Petitioner was ordered to pay $8,260 in restitution to the Town of Callahan and $386.00 in court costs. (Joint Stipulation of Fact 11.) The state attorney then entered a Code 30 nolle prosequi in accordance with the plea agreement. (Exhibit 4: Circuit Court Hearing Transcript, page 13.) On or about August 17, 2006, Respondent received from its legal counsel a report recommending that Petitioner's FRS rights and benefits be forfeited pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 12.) On August 21, 2006, Respondent approved the forfeiture of Petitioner's FRS rights and benefits pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 13.) On August 28, 2006, Respondent notified Petitioner, by agency action letter, of the forfeiture of her FRS rights and benefits and afforded Petitioner a point of entry to challenge its decision and to request an administrative review of the issues. (Joint Stipulation of Fact 14.) The Agency conducted an informal proceeding on or about February 19, 2007. At that hearing, Petitioner maintained, under oath, her innocence with regard to all criminal charges that had been alleged against her, including those to which she had pled "no contest." She further testified that she was not guilty on all counts and had pled "no contest" to some of the criminal charges because the stress of the criminal process had been taking a toll on her and her family. The stress on Petitioner was exacerbated by a mastectomy and her subsequent treatment for breast cancer conducted during the pendency of the criminal proceeding, the plea bargaining, and the plea itself. (Exhibit 9: Informal Hearing Transcript, pages 10-14.) After the informal proceeding, the cause was referred to the Division of Administrative Hearings for proceedings consistent with Section 120.57(1), Florida Statutes. Herein, Respondent presented no evidence refuting Petitioner's testimony and no evidence of her guilt in relation to the charges to which she had pled nolo contendere.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order determining that Petitioner’s rights and benefits under the Florida Retirement System have not been forfeited and reinstituting those benefits. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 31st day of July, 2007.
