The Issue Whether this cause is barred by a release of all claims.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner, Jessica Miles', Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 9th day of December, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2010.
The Issue The issue to be determined in this proceeding is whether the Petitioner is entitled to attorney’s fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, Aaron Cox d/b/a Cox Construction, Inc., is a Florida corporation organized for profit. It is owned by Petitioner, Aaron Cox. Petitioner constitutes a “small business party” within the meaning of Section 57.111, Florida Statutes. On April 22, 2008, Jason Brown, a Department of Business and Professional Regulation (Department or DBPR) investigator, observed Cox and workers for Cox performing work on a roof that appeared to require a roofing contractor's license. Petitioner was doing framing work which did not require a license and removed some of the roof related to the framing work. Petitioner did not have a roofing contractor’s license. On June 20, 2008, Robert Marnick, another DBPR investigator taking over the case, issued Cox a “Uniform Disciplinary Citation – Unlicensed” pursuant to Florida Administrative Code Rule 61-32.003. The citation stated that Marnick had probable cause to believe that Cox had violated Section 489.127(1)(f), Florida Statutes, and sought a penalty of $2,500.00. Section 489.127(1)(f), Florida Statutes, provides that no person shall “engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization . . . without being duly registered or certified or having a certificate of authority.” Florida Administrative Code Rule 61-32.003, provides that citations imposing designated fines may be issued to unlicensed persons for violations under the following conditions: “1) there has been no prior citation, final order or Notice and Order to Cease and Desist to the subject; 2) there is no evidence of consumer harm in the current case; and 3) the subject has not previously held a license to practice the activity at issue.” Rule 61-32.003(4) also provides that citations for unlicensed practice of a profession shall include a statement that, in lieu of the citation, the subject may choose the administrative procedures in Section 455.225, Florida Statutes. The citation issued to Petitioner, however, contained the following statement: SUBJECT MUST CHOOSE ONE OF THE FOLLOWING: I choose to PAY the penalty/investigative costs (if any) on the citation. I choose to DISPUTE the citation and wish to have this case PROSECUTED under s. 455.225, Florida Statutes. The Citation had attached to it a form entitled "Legal Rights and Mailing Instructions." The form included the following information with respect to disputing the basis for the citation: The legal options available to you after you have been issued a citation are as follows: You may DISPUTE the facts alleged in the citation and elect to have the case formally prosecuted. In that case, you must check the appropriate box and return the original or a copy of the citation within 30 days of the date you were served. An Administrative Complaint will be filed thereafter and served upon you. If the Department prevails at the hearing, you may be required to pay a fine and any additional investigative or administrative costs associated with prosecution. Prosecution will be in accordance with Chapters 455 and 120, Florida Statutes, and the practice act governing the profession. . . . Petitioner disputed the citation on July 17, 2008, and Respondent began an investigation into the matter as required by Section 455.225(1)(a), Florida Statutes. Petitioner was notified of the investigation by letter dated August 28, 2008. Pursuant to Section 455.225(4), Florida Statutes, a determination of probable cause shall be made by a majority of the probable cause panel, or by the Department, as appropriate. For unlicensed activity the probable cause determination is made by the Department. If probable cause exists, the statute directs that the Department will file a formal complaint against the licensee. Section 455.225(5), Florida Statutes, provides that a formal hearing will then be held before an administrative law judge from the Division of Administrative Hearings pursuant to Chapter 120 if disputed issues of material fact arise after the Department files an administrative complaint. The Department attorney assigned to review the case determined that there was no probable cause to find a violation based on insufficient evidence. The case was closed and the Petitioner was notified. However, the notification letter sent to Petitioner does not specifically make any reference to the term "probable cause." Once notified, the Petitioner served his Request for Award of Attorney’s Fees and Costs Pursuant to Section 57.111, Florida Statutes. No administrative complaint was ever filed by the Department. No complaint was ever filed in circuit court. No notice of voluntary dismissal was filed. No settlement took place between the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner, Amanda L. Van Parys', Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 9th day of December, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2010.
The Issue The issue is whether the Petition to Determine the Invalidity of Agency Statements should be dismissed.
Findings Of Fact Petitioner is a licensed insurance agent, and was the subject of the Administrative Complaint filed by the Department that became DOAH Case No. 07-1218PL. The Administrative Complaint alleged that Petitioner violated Section 626.611(16), Florida Statutes, by selling unregistered viatical settlement contracts to four elderly individuals in 2003. Most pertinent to this case, the Administrative Complaint alleged: Viatical settlement contracts are investment contracts within the meaning of section 517.021(21)(q), Florida Statutes, and are therefore securities requiring registration pursuant to section 517.07, Florida Statutes. As to each of the transactions described below, the viatical settlement contracts sold by [Petitioner] . . . were unregistered securities.[3] The Administrative Complaint also alleged that Petitioner violated a number of other statutes (e.g., Sections 626.611(5), (7), and (9), and 626.621(9), Florida Statutes) based upon misrepresentations made by Petitioner in connection with the sales of the viatical settlement contracts. On October 9, 2007, Judge Canter issued a Recommended Order in DOAH Case No. 07-1218PL finding that Petitioner violated Sections 626.611(5), (7), (9), and (16) and 626.621(9), Florida Statutes, and recommending that the Department revoke Petitioner’s license.4 The Recommended Order included the following findings and conclusions pertinent to the issue framed by the petition: [Petitioner] misrepresented the risk character of viaticals in his discussions with the investors involved in this case. He had a motive to downplay the true risk character of the viaticals, because if he received a commission for every sale of a viatical. If [Petitioner] had informed the investors of the true risk character of viaticals, the investors might not have purchased the viaticals. The definition of "security" in Section 517.021, Florida Statutes, was amended in 2006 to specifically identify "viatical settlement investment" as a type of security. [Petitioner] does not dispute that a viatical is a security. There is no dispute that the viaticals sold by [Petitioner], which are the subject of this case, were not registered securities when [Petitioner] sold them in 2003. * * * [Petitioner] objects to being charged with selling unregistered securities, because viaticals were not specifically defined as securities until 2006. [The Department] claims that, although viaticals were not specifically defined as securities in Section 517.021, Florida Statutes, in 2003, the prior definition, which included "investment contracts," was sufficient to include viaticals. [The Department] further asserts that viaticals have all the elements of a security as established by the case law. [The Department] is correct that a viatical met the definition of a security under the law that existed in 2003. However, the Administrative Law Judge does not agree with [the Department]'s argument that this interpretation of the law was clear and settled in 2003. The regulation of viaticals under the insurance code was a cause of confusion. Under Florida Administrative Code Rule 69B-231.080, the penalty for each violation of Subsections 626.611(5) and (7), Florida Statutes, is a six-month suspension; the penalty for each violation of Subsection 626.611(9), Florida Statutes, is a nine month suspension; and the penalty for each violation of Subsection 626.611(16), Florida Statutes, is a 12-month suspension. * * * 56. [U]nder Florida Administrative Code Rule 69B-231.040(1)(a), the “penalty per count” cannot exceed the highest penalty for any violation under the count, which in this case is the 12-month suspension for sale of an unregistered security. Therefore, based on the four counts of the Administrative Complaint, the “total penalty” would be four years. * * * 58. A mitigating factor is the unsettled state of the law in 2003 regarding the legal status of viaticals as securities. However, even if the penalty for the sale of unlicensed securities were eliminated altogether and the penalty per count were reduced to a nine-month suspension, the total penalty would be suspension for 36 months. Subsection 626.641(1), Florida Statutes, does not permit Petitioner to suspend a license for more than two years. Therefore, the required penalty in this case is revocation of [Petitioner]’s license. Petitioner has filed exceptions to the Recommended Order, and the Department has not yet entered a Final Order.
The Issue The issue in this case is whether the Respondent, the Department of Insurance (the Department), has an unpromulgated agency rule not to reimburse routine defense fees at more than $85 per hour when providing for the defense of civil actions against state employees.
Findings Of Fact The Petitioner, Richard L. Windsor (Windsor), was an attorney employed by the Department of Environmental Regulation (DER, now called the Department of Environmental Protection, or DEP) when he and another DER employee were named along with the DER as defendants in a counterclaim filed in 1995 in a lawsuit (the Coxwell case) that had been brought by DER, through Windsor as its attorney of record, in state circuit court in Okaloosa County to remedy alleged intentional violations of state environmental laws and regulations. The "counterclaim" initially was not served on Windsor, and DER declined Windsor's request to defend him at that time. Instead, it was decided to ignore the "counterclaim" against Windsor until it was served on him. In 1996, after Windsor terminated his employment with DEP, the "counterclaim" was served on him. Windsor requested that DEP defend him, and DEP agreed to refer the matter to Risk Management. Risk Management agreed to defend Windsor and in September 1996 assigned the defense to an Okaloosa County attorney named Jim Barth, who agreed to an hourly rate of $75. Barth telephoned Windsor to discuss the case, and Windsor suggested that Barth investigate an out-of-state property rights organization Windsor said was sponsoring and financing the claim against him and the other DEP employee. Barth rejected Windsor's suggestion. Windsor was discomforted from Barth's decision but decided not to press the issue. In a subsequent meeting with Barth, Windsor suggested that Barth should assert the government employee defense of qualified immunity from suit. It seemed to Windsor that Barth accepted the idea. In May 1997, with trial set for July, Barth telephoned Windsor to tell him that trial was set for July 1997, and a court-ordered mediation conference was scheduled for June 1997. Windsor asked about the immunity defense and felt that Barth tried to avoid answering the question. At the mediation conference in June 1997, Barth and Risk Management made a nominal settlement offer, while DEP's lawyer refused to make any offer of settlement on the ground that the counterclaim was frivolous. Although Barth's settlement offer was rejected, Windsor became very concerned about the quality of Barth's representation. He also established through conversation during the course of the day that Barth had not asserted the immunity defense on his behalf. With trial set for July 1997, Windsor decided that he no longer could rely on Barth but would have to raise the defense on his own. Windsor consulted Davisson F. Dunlap, Jr., a Tallahassee attorney with the Carlton Fields law firm. Windsor knew Dunlap from Dunlap's representation of another DER employee who had been named along with DER as a defendant in a counterclaim filed in a previous lawsuit that had been brought by DER, through Windsor as its attorney of record (the Dockery case). Windsor was impressed with Dunlap's work on the Dockery case, including his filing of a motion for summary judgment on behalf of his client on the defense of qualified governmental immunity. Dunlap explained that his hourly rate at Carlton Fields was $175, and Windsor agreed to hire Dunlap at that rate to help get Windsor's defense where Windsor and Dunlap thought it should be. Based on this understanding, Dunlap immediately began preparing a motion for summary judgment. At Windsor's request, Dunlap presented his work product to Barth, who agreed to use it to file a motion for summary judgment. When Windsor learned that Barth missed the court's deadline for filing motions, Windsor became completely dissatisfied with Barth and eventually requested that Risk Management reassign his case from Barth to Dunlap. Risk Management agreed, contacted Dunlap, and entered into a Legal Services Contract with Dunlap's new law firm at the same $85 hourly rate in the Pennington law firm's contract. At some point (probably before Dunlap and the Carlton firm actually entered into the Legal Services Contract with Risk Management), Dunlap reported to Windsor that the contract would be for $85 an hour and that the Carlton firm would not allow Dunlap to undertake representation at that rate of pay. Windsor, who was happy just to have gotten Dunlap substituted for Barth, assured Dunlap that Dunlap would receive his full $175 an hour, as initially agreed between them, and that Windsor would pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. Neither Dunlap nor Windsor advised Risk Management of the agreement for the payment of Dunlap's full $175-an-hour fee after Risk Management's Legal Services Contract with the Carlton firm at $85 an hour. However, Windsor had in mind that, at some point in the future, he would raise the issue and be able to persuade Risk Management to contribute more towards the payment of Dunlap's $175-an-hour fee. In October 1997, Windsor began an exchange of correspondence with Risk Management that went on for several months. While touching on a number of different topics, Windsor's primary initial concern in this correspondence was the payment of Dunlap's fees for work done on Windsor's case before Dunlap's Legal Services Contract with Risk Management. Risk Management agreed without much question (notwithstanding Windsor having retained Dunlap without notice to Risk Management), since Risk Management determined that Dunlap's work did not duplicate much of Barth's. When Risk Management indicated its intent to pay Dunlap for the work at the contract rate of $85 an hour, Windsor advised Risk Management for the first time that Windsor was obligated to pay Dunlap for the work at the rate of $175 an hour; Windsor requested that Risk Management "make him whole" by paying Dunlap's full fee of $175 an hour. However, Windsor did not make it clear to Risk Management in this correspondence that he also wanted Risk Management to pay Dunlap $175 an hour for work done after Dunlap's Legal Services Contract with Risk Management. Neither Windsor nor Dunlap made it clear to Risk Management either that Dunlap also had a contract with Windsor, in addition to the Legal Services Contract, for work done by Dunlap after Dunlap's Legal Services Contract with Risk Management, or that the additional contract was for $175 an hour, which obligated Windsor to pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. By letter dated July 1, 1998, Risk Management's Director, R.J. Castellanos, advised Windsor that Risk Management would not pay Dunlap more than $85 an hour for the work done before the Legal Services Contract. The letter explained that review did not disclose support for Windsor's contention in correspondence that Risk Management was negligent, requiring Windsor to retain Dunlap at $175 an hour prior to the Legal Services Contract. It pointed out that Windsor retained Dunlap at the time without any notice to Risk Management and that Risk Management was "deprived of any opportunity to contract with a firm at a negotiated rate" for those services (as it was able to do for subsequent services when it entered into the Legal Services Contract with Dunlap's firm). For those reasons, the letter explained, Risk Management "reimbursed you at an $85.00 rate, which is the maximum amount we pay as routine defense fees." Windsor contends that the latter quotation is, or is evidence of, an unpromulgated Division rule. The intent of the statement in Castellanos' letter was to explain why, under the circumstances, Risk Management would not reimburse Windsor more than $85 an hour for the fees he incurred for work Dunlap did before the Legal Services Contract; it was not intended to even address Dunlap's fees after the Legal Services Contract. At the time the statement was made, Castellanos did not realize there was any issue as to payment of Dunlap's fees for work done after the Legal Services Contract. The statement in Castellanos' letter was not a statement of general applicability. Risk Management generally does not reimburse defense fees; rather, it negotiates contracts directly with lawyers to provide those services and pays the fees directly to the lawyer under contract. Rather, the statement in Castellanos' letter was intended to explain that, under the circumstances, Risk Management was not going to reimburse more than maximum amount it pays attorneys with whom Risk Management contracts directly. As a matter of fact, Risk Management has approximately 250 open-ended contracts for legal services with law firms all over Florida. (It is not clear from the evidence when these contracts were negotiated, or which are still in use.) The hourly rates for those contracts range from a low of $65 an hour to a high (in approximately five or six of the 250 contracts) of $85 an hour for routine defense cases. (Hourly rates for trademark and copyright specialties are $150 an hour.) These included the $85-an-hour legal services contracts with Dunlap, once as a member of the Pennington firm and again as a member of the Carlton Fields firm. The evidence also did not prove that Risk Management has an unpromulgated rule not to exceed a fee of $85 an hour in negotiating directly with attorneys for legal services contracts for routine defense cases. The evidence was that Risk Management considers itself to be bound by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 when contracting with attorneys for legal services. The maximum fees allowed by the statute and those rules exceed $85 an hour for routine defense cases. In addition, the statute and rules allow agencies such as Risk Management to exceed the maximum standard fees under certain circumstances. See Conclusion of Law 21, infra. Risk Management interprets Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 to require it to negotiate fees below the maximum standard fees. Id. When negotiating with a lawyer or law firm, Risk Management attempts to utilize the leverage it enjoys from the ability to offer lawyers an open-ended contract with the possibility of volume business contract to negotiate for the lowest possible fee for quality services. To date, these legal services contracts have been for $85-an-hour or less for routine defense cases. But it was not proven that Risk Management has established an $85-an-hour maximum for routine defense in conflict with the maximum standard fees established in Rule Chapter 2-37. Windsor seems to make a vague argument that Section 111.07, Florida Statutes (1997), which requires an agency such as Risk Management to reimburse a prevailing employee a "reasonable" attorney fee when the agency declines to provide legal representation to defend the employee, and common law (which Windsor does not elaborate), requires Risk Management to reimburse him for Dunlap's services and that such reimbursement is not limited by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2-37. Windsor seems to further argue that the statement in Castellanos' letter was generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments. But it was not apparent that Windsor was making these arguments until post-hearing submissions in this case. Clearly, Risk Management does not agree with Windsor's arguments (the merits of which are not subject to determination in this proceeding); more germane to this proceeding, Risk Management never understood or considered such arguments at the time of the statement in Castellanos' letter, and Castellanos clearly did not intend the statement in his letter to be generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments.
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.
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 5th day of September, 1996.
Conclusions For Claimant: Daniel Harwin, Esquire Freedland, Harwin, Valori, P.L. Suite 2300 110 Southeast 6th Street Fort Lauderdale, Florida 33301 For Respondent: S. William Fuller, Jr., Esquire Hall Booth Smith, P.C. Suite 400 200 West Forsyth Street Jacksonville, Florida 32202
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
The Issue The following issues were raised in the facts presented at hearing: Was Combs' affidavit executed in accordance with provisions of Section 215.19, Florida Statutes? Were the construction projects upon which Combs worked exempt from the provisions of Section 215.19, Florida Statutes? Did Combs settle the claims presented?
Findings Of Fact Keith Dwaine Combs was an employee of Acco Mechanical Contractors, Inc., on three related projects at Broward County Community College, the trustees of which were the contracting authority. Combs' duties were those of a sheet metal worker. He was paid $5.50 per hour. The prevailing wage for these projects for sheet metal workers was $10.55 per hour as established by the Department of Commerce. Combs worked 240 hours on these projects and prepared an affidavit claiming he was under paid $1,212. Combs then worked an additional 80 hours on a related prevailing wage job and amended his original affidavit by adding the additional 80 hours and $404 to the amount of his claim. Combs initiated these additions to his original affidavit and resigned the affidavit, claiming a total of $1,616. Combs did not have the affidavit renotarized after he had made the amendments. Combs filed his claim with District Board of Trustees for Broward County Community College. Combs then entered into negotiations with Acco Mechanical Contractors, Inc., and eventually accepted payment of $597 less FICA and withholding taxes in settlement of his claims, and executed a release of all pending claims against Acco.
Recommendation The Hearing Officer recommends that the claim of Keith Dwaine Combs be denied. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire 2900 East Oakland Park Boulevard Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Jeff M. Brown, Esquire 3705 North Federal Highway Post Office Box 1138 Boca Raton, Florida 33432 Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301
