Findings Of Fact Upon consideration of the pleadings and oral and documentary evidence adduced at the hearing, the following facts are found: On or about September 12, 1977, the respondent Port Everglades Authority published its Advertisement for Bids, Specifications and Contract Documents for Contract No. 12-76, involving the installation of a lighting system for Berths 4 and 5. The advertisement alerted the attention of bidders to the requirements as to the conditions of employment to be observed and the minimum wage rates to be paid under the contract. Page 6 of the Instructions to Bidders directs the attention of bidders to the provisions of Resolution No. 9- 1977. Resolution No. 9-1977 is applicable to every construction contract for an amount in excess of $5,000.00 to which the Port Everglades Authority is a party. In summary form, the resolution provides that all labor employed maintain permanent residence within Broward County, unless such labor is unavailable. It further requires that the rate of wages to be paid be not less than the prevailing rate of wages as furnished by the Division of Labor, Florida Department of Commerce (unless the contract involves Federal funding, whereupon the Davis-Bacon Act is applicable) and that the fringe benefits payments be those published in the applicable issue of the Federal Register. The petitioner, an electrical contracting firm, sent an employee to the Port Everglades Authority to secure a copy of the contract documents, plans and specifications. Petitioner's president, James Branam, reviewed these documents with a view toward bidding for the work as the prime contractor and filled out an internal corporate form known as a prebid sheet. It was ultimately decided by the petitioner not to submit a bid for the work. The reason for this decision was that petitioner could not submit a competitive bid because of the prevailing wage rate and fringe benefit requirements and the Broward County residence requirement. On May 17, 1979, after the filing of the instant rule challenge petition but before the date of the hearing, the respondent repealed Resolution No. 9-1977 and enacted Resolution No. 3-1979. The only substantial difference between the two resolutions is the method of determining the prevailing wage rate. The latter resolution came about as a result of the Florida legislature's repeal of the Florida prevailing wage provision--Section 215.19. Resolution No. 3-1979 now requires that the prevailing wage rate, as well as the fringe benefits, shall be those last published in the Federal Register prior to the date of issuance of specifications by the Port Everglades Authority. As noted above, the petitioner's motion to amend its petition so as to name Resolution No. 3-1979 as the challenged rule" was granted.
The Issue Whether Petitioner's Renewed Second Amended Motion for Summary Final Order should be granted.
Findings Of Fact On June 11, 2008, Petitioner, Florida Elections Commission (Petitioner or Commission) forwarded this case to the Division of Administrative Hearings for formal proceedings. Along with the referral the Commission filed two Orders of Probable Cause dated November 30, 2007, and May 26, 2006, together with the Staff Recommendations. An Initial Order was entered on June 11, 2008, and was provided to Bruce Calvin Trask (Respondent). On June 30, 2008, a Notice of Hearing was issued setting the final hearing for September 16, 2008. Neither was returned undeliverable. On July 11, 2008, Petitioner filed a Motion for Summary Final Order. Subsequently, on July 24, 2008, Petitioner filed an Amended Motion for Summary Final Order. Consequently, on August 12, 2008, the undersigned entered an Order to Show Cause that directed Petitioner to clarify some issues. More specifically, the Order to Show Cause provided: No later than August 25, 2008, Petitioner shall respond to this order to show cause in writing as to why the case shall not be held in abeyance until Petitioner demonstrates Respondent has received the appropriate service. No later than August 25, 2008, Petitioner shall notify the undersigned if the Amended Motion contains a scrivener's error and correct it for the record, if necessary. On August 25, 2008, Petitioner Responded to the Order to Show Cause and requested that the case be placed in abeyance. On November 20, 2008, Petitioner served Respondent with Petitioner's First Request for Admissions and filed Petitioner's Second Amended Motion for Summary Final Order. Consequently, on January 8, 2009, the undersigned entered an Order to Show Cause that directed Respondent to file a response to the allegations. More specifically, The Order to Show Cause provided: The ruling on Petitioner's Motion for Summary Final Order is reserved. No later than January 16, 2009, Respondent shall file, with the Division of Administrative Hearings, a written answer or other pleading setting forth the disputed issues of fact with reference to the factual allegations of the two counts of the Orders of Probable Cause dated May 26, 2006, and November 30, 2007, and/or the factors in Section 106.265(1), Florida Statutes, which include, but are not limited to, mitigation issues. Respondent's answer or other pleading shall simultaneously be served upon Petitioner's counsel of record. The failure to file a response to this order will be deemed an admission of the information set forth in the Order of Probable Cause and can result in the Motion for Summary Final Order being granted. If the motion is granted, the Respondent can be found guilty of the two violations charged in the Orders of Probable Cause, and a civil penalty up to an amount of $2,000 can be imposed against Respondent. The Order to Show Cause was provided to Respondent's correct address of record. The Order was not returned undeliverable. It is presumed Respondent received a copy of the Order. To date, Respondent has not responded to the Order to Show Cause. On February 6, 2009, Petitioner filed a Renewed Second Amended Motion for Summary Final Order. Petitioner confirmed contact with Bruce Trask through Respondent's brother who gave Respondent documents related to the instant case, which had been served. Respondent has never responded to the Motion for Summary Final Order, Amended Motion for Summary Final Order, the Second Amended Motion for Summary Final Order, or the Renewed Second Amended Motion for Summary Final Order. Respondent has not disputed any of the material facts at issue in this proceeding. Notice of the allegations was provided to Respondent. Respondent has not responded to Petitioners First Request for Admissions. Rule 1.370(b), Florida Rules of Civil Procedure provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.
Findings Of Fact 11. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on May 19, 2011, the Amended Order of Penalty Assessment issued on June 7, 2011, and the 3rd Amended Order of Penalty Assessment issued on February 17, 2012, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On May 19, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-164-1A to WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop- Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On May 19, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On June 2, 2011, the Department received an Election of Proceeding requesting administrative review (“Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Petition is attached hereto as “Exhibit B” and incorporated herein by reference. 4. On June 7, 2011, the Department issued an Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment amended the legal name of the employer to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment assessed a total penalty of $43,256.29 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment includéd a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 5. On June 23, 2011, the Amended Order of Penalty Assessment was served by certified mail on WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On July 13, 2011, the Department received an amended Election of Proceeding form (“Amended Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 11-6178. A copy of the Amended Petition is attached hereto as “Exhibit D” and incorporated herein by reference. 7. Following issuance of subsequent Amended Orders of Penalty Assessment, on February 17, 2012, the Department issued a 3rd Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $4,708.85 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 8. On April 5, 2012, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 11-6178. A copy of the Department’s Motion to Amend Order of Penalty Assessment together with the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On April 18, 2012, the Administrative Law Judge issued an Order Granting Motion to Amend Penalty Assessment in DOAH Case No. 11-6178. The Order Granting Motion to Amend Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On April 30, 2012, the Administrative Law Judge entered an Order Closing File and Relinquishing Jurisdiction due to Respondent’s failure to participate in discovery and appear at the scheduled formal hearing in DOAH Case No. 11-6178. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit G” and incorporated herein by reference.
Findings Of Fact The Respondent, the Florida Department of Revenue (hereinafter referred to as the "Department"), notified Petitioner, Irvin L. Olden, by a Revised Notice of Intent to Make Documentary Stamp Tax and Discretionary Surtax Audit Changes (hereinafter referred to as the "Revised Notice"), that he owed $164.45 in documentary stamp tax, plus penalty of $41.11 and interest thru June 6, 1994 of $70.71. See Petitioner's exhibit 3. The Revised Notice was entered May 31, 1994. Mr. Olden was informed in the Revised Notice that the "legal basis" of the proposed audit changes was "Chapters 201.01, 201.02, 201.08, 201.17, F. S." and "Rules 12B-4.012(1) and (2), F.A.C." Mr. Olden filed a written protest to the Revised Notice by letter dated June 23, 1994. On July 12, 1994, the Department issued a letter in response to the written protest. Petitioner's exhibit 2. In pertinent part, Mr. Olden was informed: Your Quit Claim Deed recorded November 6, 1990, transferred half interest in real estate from Sue H. Olden to Irwin L. Olden. There was a $60,000 mortgage on the property. According to Rules 12B-1.012 (1) and (2), and 12B-1.013 (25) and (32), Florida Administrative Code, this transfer is taxable because of the mortgage on the property. The rules state that any deed is taxable if consideration for the property is given. The rules go on to state that a mortgage on the property is consideration. The rules are attached. The letter incorrectly referred to Rule 12B-1.012(1) and (2), Florida Administrative Code, and Rule 12B-1/013(25) and (32), Florida Administrative Code. The Department intended to refer to Rules 12B-4.012 and 12B-4.013, Florida Administrative Code. Mr. Olden timely challenged the proposed assessment of tax pursuant to Section 120.57(1), Florida Statutes. On November 23, 1994, Mr. Olden also filed a petition with the Division of Administrative Hearings challenging the validity of Rule 12B-4.012(2), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. Rule 12B-4.012(2), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides, in pertinent part: (2) Definitions: (a) "Consideration" under s. 201.02, F.S., includes but shall not be limited to, money paid or to be paid, the amount of any indebtedness discharged by a transfer of any interest in real property, mortgage indebtedness and other encumbrances which the real property interest being transferred is subject to, notwithstanding the transferee may be liable for such indebtedness. Where property other than money is exchanged for interest in real property, there is the presumption that the consideration is equal to the fair market value of the real property interest being trans- ferred. [Emphasis added]. Mr. Olden specifically challenged the portion of the Challenged Rule emphasized in finding of fact 6. Mr. Olden alleged that the Challenged Rule is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. The language of the Challenged Rule which Mr. Olden has alleged is invalid had an effective date of February 13, 1991. Although not clearly stated in Mr. Olden's petition, Mr. Olden's standing to challenge the Challenged Rule is based upon the fact that the Department relied on the Challenged Rule in the Revised Notice and the letter in response to Mr. Olden's written protest. Pursuant to the Department's Motion to Dismiss for Lack of Standing filed by the Department on February 24, 1995, the Department stipulated to the following: The Department stands by its assessment in the assessment proceeding. The statute which was recited in the Department's assessment provides ample authority for the assessment without reference to a subsequently promulgated rule. . . . The Department does not seek to retroactively apply a rule to a transaction which preceded the effective date of that rule. Any statement in the Notice of Proposed Assessment which indicates an intention to apply a rule on a retroactive basis is hereby withdrawn. . . . However, while the rule is valid, it now appears that Petitioner lacks standing to challenge a rule which is not intended to be applied to Petitioner. Petitioner has standing to challenge the assessment and to challenge the Department's prerule application of the Section 201.02, Fla. Stat. (1990). . . . Now that the Department formally withdraws any reference to the rule in support of its assessment against the Petitioner, there is no reason for this matter to proceed further. Counsel for the Department reiterated the Department's position at hearing.
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
The Issue The issues for consideration here are raised through the process of an Administrative Complaint filed by the Petitioner against the Respondent. In particular, by Amended Administrative complaint, Respondent is alleged to have been arrested for his involvement in illegal sale and/or delivery of a controlled substance, namely cocaine, to an undercover agent of the Jacksonville Sheriffs Office and that Respondent entered a plea of nolo contendere to the crime of possession of cocaine, and was placed on five (5) years probation and sentenced to serve three hundred sixty-four (364) days in the Duval County, Florida, jail. For these matters, Respondent is accused of violating Subsection 468.106(1)(i), Florida Statutes, by distributing a controlled substance other than in the course of professional practice of pharmacy and/or Section 893.13, Florida Statutes, by selling, manufacturing, delivering or possessing with intent to sell, manufacture, or deliver, a controlled substance. It is further asserted that Respondent has violated Subsection 465.016(1)(f), Florida Statutes, by having been convicted or found guilty, regardless of adjudication, in a court of this state of a crime directly related to his ability to practice pharmacy or to the practice of pharmacy, in that the plea of nolo contendere constitutes a conviction for purposes of this provision. EXHIBITS AND WITNESSES This case was presented upon the factual stipulation entered into between the parties and upon the agreement that the matter be considered as a formal Subsection 120.57 (1), Florida Statutes, hearing, notwithstanding a lack of disputed facts. Petitioner offered four (4) exhibits which were received into evidence.
Findings Of Fact Michael Anthony Norman, Respondent, is licensed by the State of Florida, Department of Professional Regulation, Board of Pharmacy, to practice pharmacy in Florida. On June 15, 1981, Respondent was arrested for sell or possession of a controlled substance, namely cocaine. Following this arrest by information in the Circuit Court, Criminal Division, in and for Duval County, Florida,, Case No. 81-5654-CF, Division Q, Respondent was charged with selling, manufacturing, delivering, bringing into the state or knowingly being in actual or constructive possession of twenty-eight (28) grams or more of cocaine or a mixture containing cocaine, to wit: twenty-eight (28) grams or more but less than two hundred (200) grams, contrary to the provisions of Subsection 893.135(1)(b)1, Florida Statutes. See Petitioner's Exhibit No. 3, admitted into evidence. On January 18, 1982, Respondent entered a plea of nolo contendere to knowingly or being in actual or constructive possession of cocaine or a mixture containing cocaine, contrary to the provisions of Subsection 593.13(1)(a), Florida Statutes, and Subsection 893.03(2)(a)2, Florida Statutes. The Court withheld adjudication of guilt and placed the Defendant on probation for a period of five (5) years upon condition that Defendant, among other requirements, serve three hundred sixty-four (364) days in the Duval County jail, with credit for two (2) days time served. See Petitioner's Exhibit No. 3, admitted into evidence. At present, Petitioner is serving the condition of probation related to jail time by his participation in a work release program known as Fairfield House, in which Petitioner works each day at a job other than as a pharmacist and is required to remain at that facility at night. The anticipated date of release from this obligation at Fairfield House is October 29, 1982, at the latest. During the period of Respondent's stay at Fairfield House, he has sought continuing education credits related to his profession through courses found in Pharmacy Times magazine. This action on the part of Respondent was through the mailing of certain course work. This hearing was occasioned by an Administrative Complaint and subsequent amendment to the Administrative Complaint, for which Respondent requested a formal Subsection 120.57(1), Florida Statutes, hearing. The amended Administrative Complaint, which is the complete statement of present claims against Respondent was signed April 28, 1982.
