The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2016),1/ by failing to secure the payment of workers’ compensation coverage, as alleged in the Third Amended Order of Penalty Assessment; and, if so, what penalty is appropriate.
Findings Of Fact Parties. The Department is responsible for enforcing the requirements of chapter 440, which mandate employers in Florida secure the payment of workers’ compensation insurance to cover their employees in case of workplace injuries. § 440.107, Fla. Stat. ASAP Flooring is owned and operated by Mr. Reinartsen; it has been an active corporation since 2006. ASAP Flooring provides flooring, painting and drywall services for construction projects. Ms. Brigantty is a Department compliance investigator. Her job is to ensure compliance by employers in her district with the workers’ compensation insurance regulations. Her job duties include conducting investigations triggered either through a report to the Department of non-compliance or through random inspections of workplaces and jobsites. As part of her investigative duties she conducts employer and employee interviews, collects financial documentation, and researches various data banks for corporate and workers’ compensation status. Department’s Investigation and Assessment. On October 24, 2016, Ms. Brigantty was driving around Pinellas County as part of her work duties. She stopped to conduct a random check at a residential construction site located at 3583 Douglas Place, Palm Harbor, Florida 34683 (“Jobsite”). At the Jobsite, Ms. Brigantty observed two men -- later identified as Eric Reinartsen and Wallace Humbert -- preparing and installing floors. After identifying herself as a compliance officer and interviewing them, she discovered Mr. Reinartsen was the owner of ASAP Flooring, and Mr. Humbert was an ASAP Flooring employee. Mr. Reinartsen admitted ASAP Flooring did not have workers’ compensation. At the time, he believed ASAP Flooring was exempt from the workers’ compensation insurance requirements due to his role as a corporate officer and because it only had one employee. During the initial interview, Ms. Brigantty learned Mr. Humbert had worked for ASAP Flooring for four or five months and was paid a flat fee per job. After meeting with Mr. Reinartsen, Ms. Brigantty checked the Florida Department of State, Division of Corporations website to confirm Respondent’s status as an active corporation, and that Mr. Reinartsen was its only officer. Mr. Brigantty then used the Department’s database, Coverage and Compliance Automated System (“CCAS”), which contained information on employers and their workers’ compensation status and any exemptions. According to CCAS, at the time of Ms. Brigantty’s inspection, ASAP Flooring had no workers’ compensation insurance. CCAS also reflected Respondent had an exemption from the workers’ compensation insurance requirements for Mr. Reinartsen because he was its sole corporate officer, but there was no exemption for Mr. Humbert or for any other employees. On October 24, 2016, after confirming ASAP Flooring had at least one employee, but had not secured workers’ compensation insurance, the Department issued a SWO and had it personally served on Mr. Reinartsen at the Jobsite.3/ At this time, the Department also served Mr. Reinartsen with a Request for Production of Business Records for Penalty Assessment Calculations. In response, Respondent provided bank statements, check images, check stubs, tax information and e-mails to the Department. These documents showed that during the previous two-year period (“look-back period”), October 24, 2014, to October 24, 2016, Respondent had a number of employees, but did not have workers’ compensation coverage for them. At the hearing, Respondent did not dispute ASAP Flooring was required to have workers’ compensation insurance, the status of the people identified as employees, or the fact that it did not have adequate workers’ compensation coverage.4/ Penalty Calculation. To calculate the penalty assessed against Respondent, the Department’s Auditor utilized the information she gleaned from documents submitted by Respondent and through Mr. Reinartsen’s deposition testimony taken in these proceedings. She then applied the formulas and rules set forth in the Florida Administrative Code to the information and utilized a Penalty Calculation Worksheet (the “worksheet”) to compute the final penalty assessment amount. The worksheet for the Third OPA is attached as Appendix “A” to this Recommended Order (“Appx. A”). Through her review of ASAP Flooring’s business records and Mr. Reinartsen’s deposition testimony, the Auditor confirmed (1) the individuals who were direct employees or construction subcontractors during those periods of non-compliance (Appx. A, column “Employer’s Payroll”); (2) the periods of non-compliance (Appx. A, column “b”); (3) the gross payroll for those individuals during these periods of non-compliance (Appx. A, column “c”); and (4) the services provided by those individuals. The Auditor used the services to determine the classification codes created by the National Council on Compensation Insurance (“NCCI”), and listed in the NCCI’s Scopes Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021(1). These classification codes are four-digit codes assigned to various occupations by the NCCI to assist in the calculation of workers’ compensation insurance premiums. To derive the gross pay figures in the worksheet (Appx. A, column “c”) the Auditor explained she utilized payment information in the ASAP Flooring’s business records. Although Respondent initially asserted some of these payments were actually for both labor and materials, these distinctions were not detailed in the business records created at the time of service or payment. Regardless, pursuant to rule 69L-6.035(i) and (j), the Auditor excluded the cost of materials from the payroll calculations. Specifically, she applied an “80:20” ration rule for those payments Respondent claimed were partly labor and partly materials: considering 80 percent of the total payment as “labor” for penalty calculation purposes; and excluding 20 percent for penalty calculation purposes as “materials.” Using the gross payroll (Appx. A, column “c”) and the appropriate NCCI manual rate (Appx. A, column “e”), the Auditor calculated the premium rate (Appx. A, column “f”) for each individual or entity (Appx. A, column “Employer’s Payroll”). She then multiplied the premium rate by two to reach a penalty amount (Appx. A, column “g”). This calculation method to determine a final penalty is authorized by section 440.107(7)(d)1., and rule 69L-6.027. Ultimately, based on the amounts indicated in the worksheet, the Department issued a Third Amended OPA calculating the penalty as $15,577.84. The Department applied a 25 percent reduction, yielding a remaining penalty of $11,683.38. According to the evidence, in November 2016, Respondent paid $1,000 to the Department as a “down payment” toward any ultimate assessment. Applying this $1,000 as a credit to the penalty in the Third OPA results in Respondent owing $10,683.38. Respondent’s Defenses. At the final hearing, Mr. Reinartsen did not dispute any of the figures in the worksheet or the penalty amount. Rather, he raised three arguments unrelated to ASAP Flooring’s failure to secure workers’ compensation insurance for its employees. First, Respondent asserted Ms. Brigantty was not properly outfitted to enter a construction site and therefore, he argued, she was violating rules set forth by the Occupational Safety and Health Agency (“OSHA”). Ms. Brigantty admitted she was not wearing a hard hat, and did not think she was wearing steel-toed boots with hard soles when she entered the Jobsite. Second, Respondent argued Ms. Brigantty did not issue a SWO to another contractor at a neighboring construction site who was putting in pavers, identified only as “Luis.” Mr. Reinartsen could not provide the name of the other contractor’s company, a last name, or any other identifying information; nor did Respondent provide evidence that “Luis” was in a similar situation: non-compliant with and non-exempt from chapter 440. Ms. Brigantty did not remember going to the neighboring site or speaking to anyone else during her stop at the Jobsite. Finally, Respondent argued the penalty is substantial and payment in full (as opposed to a payment plan spread out over a number of years) would put him and his small family-owned company out of business. Ultimate Findings. The Department demonstrated, by clear and convincing evidence, Respondent violated chapter 440 as charged in the SWO by failing to secure workers’ compensation coverage for its employees. The Department demonstrated, by clear and convincing evidence, the penalty for this violation is $11,683.38.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, ASAP Flooring, violated the requirement in chapter 440 to secure workers’ compensation coverage and imposing a total penalty of $11,683.38, less the $1,000 down payment, the balance to be paid in $100 a month increments. DONE AND ENTERED this 12th day of February, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 12th day of February, 2018.
The Issue Whether Respondent timely filed a written request for an administrative hearing, and, if not, whether the doctrine of equitable tolling provides a defense to the applicable deadline for filing a petition for hearing.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Following an investigation to determine whether Respondent had secured sufficient workers’ compensation insurance coverage, the Department served a Stop-Work Order and Order of Penalty Assessment on Respondent on September 10, 2015. The Department served an Amended Order of Penalty Assessment on Respondent on October 15, 2015. The Department served a 2nd Amended Order of Penalty Assessment (the “Penalty Assessment”) on Respondent on December 14, 2015. With the Penalty Assessment, the Department also provided Respondent a document entitled “Notice of Rights.” The Notice of Rights advised, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. * * * You must file the petition for hearing so that it is received by the Department within twenty- one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, FL 32399-0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Dale Russell, Compliance Investigator with the Department, personally served the Penalty Assessment along with the Notice of Rights on Respondent. As established by the Certificate of Service on the Penalty Assessment, as well as Mr. Russell’s testimony, Mr. Russell hand-delivered the documents to Respondent on December 14, 2015. Mr. Russell personally served the documents on Jose Fuentes, Respondent’s owner and general manager. Mr. Russell also reviewed with Mr. Fuentes the Notice of Rights. Mr. Russell discussed the import of the 21-day deadline to request a hearing to dispute the Penalty Assessment. Twenty-one days after December 14, 2015, is January 4, 2016. Respondent submitted to the Department a letter requesting review of the Penalty Assessment. Respondent’s letter is dated January 11, 2016. The Department received Respondent’s letter on January 12, 2016. At the final hearing, Mr. Fuentes testified regarding his handling of the Penalty Assessment and request for a hearing on behalf of Respondent. Mr. Fuentes acknowledged that he personally received the Penalty Assessment from Mr. Russell on December 14, 2015. Mr. Fuentes explained that his delay in submitting his letter to the Department was based on difficulties his family was experiencing at that time. His wife was facing surgery. Consequently, he was focused on her medical concerns, as well as caring for their three children. Unfortunately, he lost track of the time in which to file the petition. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file its petition requesting administrative review with the Department within 21 days of Respondent’s receipt of the Penalty Assessment. Therefore, the legal issue to determine is whether Respondent’s petition should be dismissed as untimely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of June, 2016.
Recommendation Based on the evidence presented at the hearing on September 22, 1989, the hearing officer recommends that the attorney fees awarded to Ganson be in the following amounts: Attorney fees for the Administrative Phase: $16,550.00 Attorney fees for the Appeal Phase: 23,550.00 Attorney fees for the Attorney Fee Phase: 8,150.00 TOTAL ATTORNEY FEE RECOMMENDATION $48,250.00 Based on the evidence presented at the hearing on September 22, 1989, the Hearing Officer recommends that the costs awarded to Ganson be in the following amounts: Administrative Phase $401.94 Appeal Phase 100.00 Attorney Fee Phase 0.00 TOTAL COSTS RECOMMENDATION $501.94 Respectfully submitted and entered this 12th day of October 1989, 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 12th day of October, 1989. APPENDIX TO REPORT AND RECOMMENDATION IN GANSON v. STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DOAH CASE NO. 89-4818F, 1st DCA CASE NO. 88-01568 The following is a summary of the rulings at hearing on all of the exhibits offered by all parties at the evidentiary hearing on September 22, 1989. Exhibits offered by Petitioner Ganson: Petitioner Ex. 1: Received without objection. Petitioner Ex. 2: Received without objection. Petitioner Ex. 3: Received without objection. Petitioner Ex. 3A: Received without objection. Petitioner Ex. 4A: Received without objection. Petitioner Ex. 4B: Received without objection. Petitioner Ex. 5. Objection on grounds of relevancy. Objection overruled and exhibit received. [Objection on the grounds of hearsay might have resulted in a different ruling, but there was no hearsay objection.] Petitioner Ex. 6: Objection on grounds of relevancy. Objection overruled and exhibit received. [Objection on the grounds of hearsay might have resulted in a different ruling, but there was no hearsay objection.] Petitioner Ex. 7: Received without objection. Petitioner Ex. 8: Received without objection. Petitioner Ex. 9: Officially recognized without objection. Petitioner Ex. 10: Officially recognized without objection. Petitioner Ex. 11: Objection sustained. [Included in record as rejected exhibit.] Petitioner Ex. 12. Officially recognized without objection. Petitioner Ex. 13: Officially recognized without objection. Exhibits offered by Respondent Department: Department Ex. 1: Received without objection. Department Ex. 2: Received without objection. Department Ex. 3: Objection on grounds exhibit constitutes statement made in negotiations concerning a compromise. Objection sustained. [Included in record as rejected exhibit.] Department Ex. 4: Objection on grounds exhibit constitutes statement made in negotiations concerning a compromise. Objection sustained. [Included in record as rejected exhibit.] COPIES FURNISHED: Augustus D. Aikens, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kenneth D. Franz, Esquire 204-B South Monroe Street Tallahassee, Florida 32301 Raymond D. Rhodes, Clerk District Court of Appeal First District State of Florida 300 Martin Luther King Boulevard Tallahassee, Florida 32399-1850 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA TERRI J. GANSON, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 88-1568 DOAH CASE NO. 89-4818F STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, OFFICE OF STATE EMPLOYEES' INSURANCE, Appellee. / Opinion filed December 22, 1989. Appeal from an order of the Department of Administration. Kenneth D. Kranz, of Eric B. Tilton, P.A., Tallahassee, for appellant. Augustus D. Aikens, Jr., General Counsel, Department of Administration, Tallahassee, for appellee. OPINION AND ORDER ON ATTORNEY FEE BARFIELD, J. By direction of this court the matter of attorney fees payable to appellant was submitted to Michael M. Parrish, Hearing Officer, for a recommendation on the amount of fee to be awarded. His Report and Recommendation follows. REPORT AND RECOMMENDATION By opinion filed July 7, 1989, reported at 14 FLW 1594, the District Court of Appeal, First District, reversed and remanded a final order of the Department of Administration. The opinion included the following disposition of Ganson's motion for costs and attorney fees: Appellant's motion for attorney fees under section 120.57(1)(b)10, Florida Statutes (1987), based upon her assertion that the agency action which precipitated the appeal was a gross abuse of the agency's discretion, is granted. The parties may, within twenty days of the date this decision becomes final, file with this court a stipulation regarding the amount of reasonable attorney fees to be awarded. In the event the amount of the attorney fees cannot be agreed upon by the parties within the time allotted, the Department shall promptly refer the matter to Michael Parrish, the Division of Administrative Hearings hearing officer, for an immediate evidentiary hearing to determine the amount of reasonable attorney fees. The hearing officer's recommendations thereon shall be filed with this court within sixty days after this opinion shall have become final, at which time this court will enter an appropriate order awarding attorney's fees. Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984); Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984). The parties were unable to reach a stipulation regarding the amount of reasonable attorney fees to be awarded. On August 28, 1989, the Department of Administration referred the matter to Michael Parrish, a hearing officer of the Division of Administrative Hearings, to conduct an evidentiary hearing to determine the amount of reasonable attorney fees. In order to accommodate scheduling difficulties of counsel, at the request of the parties the court extended the sixty-day period for the filing of the hearing officer's recommendations until October 13, 1989. (See Motion For Extension of Time filed September 7, 1989, and order granting same issued September -14, 1989.) An evidentiary hearing was originally scheduled for September 15, 1989. At the request of counsel for the Department of Administration, the evidentiary hearing was continued until September 22, 1989. At the hearing on September 22, 1989, Ganson presented the testimony of Kenneth D. Kranz, Esquire, the attorney who performed all of the services for which fees are claimed. Ganson also offered numerous exhibits including the affidavits of two local attorneys (Vernon T. Grizzard, Esquire, and Fishel Philip Blank, Esquire), both of which included expert opinions regarding the reasonableness of the attorney fees sought by Ganson. The Department also called Mr. Kranz as a witness and offered four exhibits. [Rulings on all exhibits offered by all parties are contained in the appendix to this report and recommendation.] The Department did not call any expert witnesses to oppose the opinions expressed by Messrs. Kranz, Grizzard, and Blank. At the conclusion of the hearing, the parties were allowed until September 29, 1989, within which to file memorandums of law, which have been carefully considered during the preparation of this report and recommendation. The statutory provision pursuant to which the court has granted an award of attorney fees, Section 120.57(1)(b)(10), Florida Statutes (1987), reads as follows, in pertinent part: When there is an appeal, the court in its discretion may award reasonable attorney's fees and costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process or that the agency action which precipitated, the appeal was a gross abuse of the agency's discretion. Attorney Fees Ganson's Proposal For Amount Of Attorney's Fees And Costs Of Litigation suggests that there may be some disagreement between the parties as to whether the court's award of attorney fees encompasses all phases of this litigation, or is only an award of attorney fees for legal services on appeal. It would appear from the court's specific mention of Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984), and Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984), that the court envisioned an award of attorney fees "at the hearing level," as well as on appeal. And it also appears to be well settled that attorney fees may also be recoverable for the time spent litigating entitlement to attorney fees. See Bill Rivers Trailers, Inc. v. Miller, 489 So.2d 1139 (Fla. 1st DCA 1986); B & L Motors, Inc. v. Big Inotti, 427 So.2d 1070 (Fla. 2d DCA 1983). See also Albert Heisler v. Department of Professional Regulation, Construction Industry Licensing Board, 11 FALR 3309 (DOAH Final Order issued May 19, 1989). For purposes of this report and recommendation, I have assumed that the court's award of attorney fees encompassed all three phases of activity in this litigation; the "administrative phase" (from the commencement of the administrative claim until the Department's final order), the "appeal phase" (from the Department's final order until the appellate court opinion), and the "attorney fee phase" (from the appellate court opinion to the present). Accordingly, I have included in this report and recommendation discussion and recommendations as to the appropriate attorney fee award for all three phases of the litigation. Where it appears helpful to do so, issues regarding the three phases are discussed separately. The methodology to be followed in determining the amount of reasonable attorney fees to be awarded to a prevailing party is set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). There, the Florida Supreme Court decided to "adopt the federal lodestar approach for computing reasonable attorney fees" and, at pages 1150-51, set forth the following methodology: The first step in the lodestar process requires the court to determine the number of hours reasonably expended on the litigation. Florida courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee. To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed. Counsel is expected, of course, to claim only those hours that he could properly bill to his client. Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary. The "novelty and difficulty of the question involved" should normally be reflected by the number of hours reasonably expended on the litigation. The second half of the equation, which encompasses many aspects of the representation, requires the court to determine a reasonable hourly rate, for the services of the prevailing party's attorney. In establishing this hourly rate, the court should assume the fee will be paid irrespective of the result, and take into account all of the Disciplinary Rule 2-106 factors except the "time and labor required," the "novelty and difficulty of the question involved," the "results obtained," and "[w]hether the fee is fixed or contingent." The party who seeks the fees carries the burden of establishing the prevailing "market rate," i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services. The number of hours reasonably expended, determined in the first step, multiplied by a reasonable hourly rate, determined in the second step, produces the lodestar, which is an objective basis for the award of attorney fees. Once the court arrives at the lodestar figure, it may add or subtract from the fee based upon a "contingency risk" factor and the "results obtained." The number of hours reasonably expended on the litigation. Ganson's attorney has submitted contemporaneously prepared, detailed time records evincing his labors at all three phases of this litigation. These records reflect that Ganson's counsel recorded 66.2 hours at the administrative phase, 94.2 hours at the appeal phase, and 32.6 hours at the attorney fee phase, for a grand total of 193 hours. To support the application for fees, Ganson introduced the affidavits of two members of the Florida Bar, both of whom practice administrative law in the Tallahassee area, and both of whom opined that the total number of hours claimed was reasonable and that the number of hours claimed for each of the three phases of the litigation was also reasonable. Although the Department argues that many of the hours claimed by Ganson's attorney are excessive, the Department did not offer any expert witness testimony to support its arguments. Part of the Department's argument in this regard is that the hours claimed by Ganson's attorney should be reduced because the attorney prepares his own legal documents, including pleadings, notices, motions, and briefs, by typing on a computer. Mr. Kranz explained in his testimony that such preparation is no different and no more time-consuming than preparation of documents by such means as oral dictation or handwriting, and the Department has not offered any evidence that Mr. Kranz, document preparation methods are more time-consuming than the methods of other attorneys. Also, without benefit of expert opinion or other evidence, the Department argues that the amount of time spent by Ganson's attorney on writing the brief in the appellate court should be reduced from the claimed 51 hours to an arbitrary figure of 26 hours. There is simply no basis in the record for such a reduction. Nor is there any record basis for the Department's contention that the hours spent by Ganson's attorney in preparation for oral argument should be arbitrarily reduced from the claimed 13 to a mere 4. The Department has raised challenges to several other details of the hours claimed by Ganson's attorney, but all of the challenges fail for want of expert opinion or other evidence to support them. Based on the evidence presented, all of the hours claimed by Ganson's attorney are reasonable. Accordingly, the first step in the lodestar calculation consists of a total of 193 hours broken down as follows: 66.2 hours at the administrative phases, 94.2 hours at the appeal phase, and 32.6 hours at the attorney fee phase. The reasonable hourly rate for the services of Ganson's attorney. The parties disagree on what constitutes a reasonable hourly rate for Ganson's attorney. Ganson contends that the rate should be $125 per hour, basing the contention largely on the opinions in the Blank and Grizzard affidavits to the effect that $125 is the "market rate" in the Tallahassee legal community for services of the nature provided in this case. The Department contends, based primarily on its notions about the experience level of Mr. Kranz and on what Mr. Kranz has charged other clients for legal work, that a reasonable hourly rate would be $75 for legal work at the administrative phase and $100 per hour for legal work at the appeal phase and thereafter. Ganson's contentions are supported by evidence; the Department's are not. Further, Ganson's contentions are consistent with the second step methodology of Rowe, supra, while the Department's are not. Rowe places on the party seeking attorney fees the burden of establishing "the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services." The evidence shows that rate to be $125 per hour. The calculation of the lodestar amount. The calculation of the lodestar amount under the Rowe methodology is normally a simple arithmetic task; the multiplication of the reasonable number of hours times the reasonable hourly rate. Here, the calculation is as follows: For the administrative phase, 66.2 hours x $125.00 $8,275.00; for the appeal phase, 94.2 hours x $125.00 $11,775.00; and for the attorney fee phase, 32.6 hours x $125.00 $4,075.00. Adding the three components together produces a lodestar of $24,125.00. But the Department argues, on the basis of cases such as Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla. 1988), that the fee to be awarded in this case must be limited to the maximum fee that Ganson was obligated to pay to her attorney; an amount which the Department contends is only $500.00. Disposition of this issue requires a closer look at the nature of Ganson's fee arrangement and at a couple of other more analogous cases. The fee arrangement between Ganson and her attorney is described as follows in one of the Kranz affidavits (Petitioner's Exhibit 2, at pp. 8 and 9): Our agreement was that: 1) no fee would be owed if we were not successful in her claim; and 2) we would attempt to secure an award of fees against the Department, and in the event that we, were successful in that claim, attorney's fees would be whatever were awarded. Upon being advised at the outset that an eventual award of fees appeared very unlikely, the client initially insisted that she wanted to pay me something if we ultimately won on the merits, but did not prevail on the issue of fees. I perceived that it was very important to her not to consider herself to be taking advantage of me. I agreed and said that we would decide on a fee later if that situation arose. We never discussed an amount certain, but it was my intention that, if we ended up in this situation, I would charge her, if anything, a token amount only large enough to make her comfortable. Realistically, no significant fee (if any) would have been paid by the client; any fees bearing any rational relationship to the work required in this case could only have come from an award against the Department. In his testimony at the hearing, Mr. Kranz testified that if Ganson had won on the merits, but had not been awarded attorney fees against the Department, and if Ganson had insisted on paying a fee for legal services, he would probably have charged her about $500.00. But Mr. Kranz clarified that under those circumstances, the fee would have been more in the nature of what Ganson wanted to pay, rather than anything she would have been required to pay. In brief summary; although under certain speculative circumstances which might have, but never did, come about, Ganson might have wanted to pay a nominal fee to her attorney, her attorney had no intention of collecting a fee from any source other than an award of attorney fees against the Department. Specifically, Ganson's attorney did not have an agreement to share in any percentage of any recovery he might obtain for Ganson. Ganson's fee agreement with her attorney is unlike the agreement in Miami Children's Hospital, supra, and is quite similar to the fee agreements addressed in Quanstrom v. Standard Guaranty Insurance Company. 519 So.2d 1135 (Fla. 5th DCA 1988), and State Farm Fire and Casualty Co. v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988). The fee agreement in Quanstrom, supra, "was to the effect that if the attorney ultimately prevailed..., the attorney would be entitled to a fee which would be the amount the court allowed as an attorney's fee under Section 627.428, Florida Statutes, rather than a percentage of the recovery." And in Palma, supra, the contingency fee agreement provided that "the amount of the fee agreed to under the contract was a fee to be awarded by the court." In both Quanstrom and Palma, the courts held that the usual Rowe factors should be used to calculate reasonable attorney fees, and in neither case was the fact that no fee was due from the client found to be a basis for limiting the fee. In view of the nature of the fee agreement in this case, and on the basis of Quanstrom and Palma, the usual Rowe factors should be applied here. Effect of "results obtained" on the lodestar amount. In the Rowe decision the court observed, at page 1151: The "results obtained" may provide an independent basis for reducing the fee when the party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims. When a party prevails on only a portion of the claims made in the litigation, the trial judge must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. In this case, Ganson was successful on her entire claim against the Department. Therefore, the "results obtained" component of the Rowe methodology does not provide a basis for reducing the fee. Application of the "contingency risk" factor to the lodestar amount. Ganson argues that a "contingency risk" factor of 2.5 should be applied to the lodestar amount. The Department argues, for a number of different reasons set out below, that no contingency risk factor should be applied in this case. At page 1151 of the Rowe decision, the court tells us the following about contingency risk factors: Based on our review of the decisions of other jurisdictions and commentaries on the subject, we conclude that in contingent fee cases, the lodestar figure calculated by the court is entitled to enhancement by an appropriate contingency risk multiplier in the range from 1.5 to 3. When the trial court determines that success was more likely than not at the outset, the multiplier should be 1.5; when the likelihood of success was approximately even at the outset, the multiplier should be 2; and, when success was unlikely at the time the case was initiated, the multiplier should be in the range of 2.5 and 3. (emphasis added) The use of the phrase "entitled to enhancement" supports a conclusion that the application of a multiplier is mandatory in contingent fee cases, and Florida appellate courts in two districts have so held. See State Farm Fire & Casualty Co. v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988); Quanstrom v. Standard Guaranty Insurance Company, 519 So.2d 1135 (Fla. 5th DCA 1988). But several decisions in the Third District Court of Appeal have concluded that the contingency risk multiplier is not mandatory. See Bankers Insurance Company v. Valmore Gonzalez, 14 FLW 906 (Fla. 3d DCA 1989); National Foundation Life Insurance Company v. Wellington, 526 So.2d 766 (Fla. 3d DCA 1988); Travelers Indemnity Company v. Sotolongo, 513 So.2d 1384 (Fla. 3d DCA (1987). Although the matter is not entirely free from doubt, unless and until the matter is further clarified by the Florida Supreme Court, it would appear that the better reasoned view, and the most widely accepted view, is that the contingency risk multiplier should be treated as mandatory in cases where the party seeking fees has entered into a contingent fee agreement. The Department argues that, even if mandatory, a contingency risk multiplier is inappropriate here because the fee agreement between Ganson and her attorney was never reduced to writing. In this regard, the Department relies on FIGA v. R.V.M.P. Corp., 681 F.Supp 806 (S.D. Fla. 1988), in which a federal court applying Florida law held: Because this contingency fee arrangement was never reduced to a writing, it is an unconscionable contract. The Rules Regulating the Florida Bar, in particular Rule 4-1.5(D)(1), (2)(1987), provide that every lawyer who accepts a contingency fee arrangement must reduce the arrangement to a writing signed by the client and a lawyer for the law firm representing the client. This obviously is not the case here. Because the proposed arrangement violates this rule of professional responsibility, the contingency fee agreement here is unconscionable and, therefore, void. See Citizens Bank & Trust Co. v. Mabry, 102 Fla. 1084, 136 So. 714 (1931). Because the contingency fee arrangement here is unconscionable, the court will not apply a contingency risk factor. See Aperm of Fla., Inc. v. Trans-Coastal Management Co., 505 So.2d 459 (Fla. 4th DCA 1987). Because of the views quoted above, the court in FIGA declined to apply a contingency risk factor, but did, on a quantum merit theory, award a substantial attorney fee. For several reasons, FIGA does not appear to be controlling here. First, the conclusion in FIGA is not based on Florida case law, nor does there appear to be any Florida appellate court decision which has followed FIGA. Second, the facts in FIGA are different from the facts in this case. FIGA involved a contingency fee agreement in which the attorney was to receive one- third of the amount recovered and, if no amount was recovered, the client would pay the costs, but not the fees, of the litigation. As discussed above, the contingency fee agreement in this case does not contemplate the attorney taking a share of the client's recovery or otherwise receiving a fee from the client. Rather, as in Quanstrom and Palma, supra, the only source from which the attorney seeks a fee is the opposing party. Because of these differences, FIGA is inapplicable to the instant matter. The Department also argues that on the basis of Pennsylvania v. Delaware Valley Citizens, Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987), the use of the contingent fee multiplier should be limited or omitted. In response to an identical argument, the court in Aetna Life Insurance Company v. Casalotti, 544 So.2d 242 (Fla. 3d DCA 1989), held: We are unable to entertain that suggestion, for the Florida Supreme Court in Rowe expressly authorized multipliers and prescribed the permissible range. The same result should obtain here. See also, State Farm Fire & Casualty Co. v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988), and Quanstrom v. Standard Guaranty Insurance Company, 519 So.2d 1135 (Fla. 5th DCA 1988). (Contingent fee multipliers are mandatory.) The Department argues that no multiplier should be used because it would result in an attorney fee many times larger than Ganson's recovery and would be a fee with no reasonable relationship to the size of the recovery. In answer to a similar argument, the court in Quanstrom v. Standard Guaranty Insurance Company, 519 So.2d 1135 (Fla. 5th DCA 1988) , held: As to the argument that the contingency risk multiplier may, in the trial court's opinion, result in an unreasonably large fee in a given case (such as when, as here, it is compared only to the amount in controversy), the answer is that the factors other than the contingency risk factor, such as the hours expended and the routinely charged fee rate, are equally implicated. If any formula considers only relevant factors, and all of them, and correctly weighs those factors, the result necessarily will be correct. If the result is unsatisfactory to those having the responsibility and authority in the matter, then they should change the formula by reassessing the factors to be considered and the weight to be given each. We who are bound to follow the authority of others should not omit factors or juggle the weight given a factor, beyond the perimeters given the exercise of discretion, in order to reach a preferred result. And it should also be noted that in State Farm Fire & Casualty Co. v. Palmer, 524 So.2d 1035 (Fla. 4th DCA 1988), an attorney fee in the amount of $253,500.00, calculated pursuant to the Rowe factors, was approved on appeal even though the amount recovered by the plaintiff was only $600.00. (The Palma court noted that the litigation in that case had become protracted due to "stalwart defense" and "militant resistance;" characteristics which are to some extent shared by the litigation in this case.) On the basis of the foregoing, the mere size of the fee, if properly calculated pursuant to the Rowe methodology, is not a basis for reduction of the fee. For all of the reasons set forth above, it is concluded that a contingency risk multiplier should be applied in this case. What remains to be done is to select the appropriate multiplier. Although Ganson argues otherwise, upon consideration of the evidence, it appears that at the outset the likelihood of success in this case was approximately even. To borrow from Appalachian, Inc. Ackmann, 507 So.2d 150 (Fla. 2d DCA 1987), in which a multiplier of 2 was approved, at the outset the outcome of this case "was tentative and incapable of a comforting prediction of success. Under such circumstances, Rowe requires a multiplier of 2. Application of that multiplier yields the following results: For the administrative phase, $8,275.00 x 2 $16,550.00; for the appeal phase, $11,775.00 x 2 $23,550.00; and for the attorney fee phase, $4,075.00 x 2 $8,105.00. The total for all three phases of the litigation is calculated as $16,550.00 + $23,550.00 + $8,150.00 - $48,250.00. On the basis of all of the foregoing, a reasonable attorney fee pursuant to the Rowe methodology totals $48,250.00 Costs Ganson's motion before the appellate court was titled "Motion For Attorney's Fees," but the opening sentence of the motion requests an award of "attorney's fees and costs." (emphasis added) The motion also concludes with a request for an award of "reasonable attorney's fees and costs." (emphasis supplied) The court's opinion in this case grants Ganson's "motion for attorney fees," but never specifically awards costs. Similarly, the court's opinion does not specifically direct the hearing officer to make any recommendation regarding costs. Nevertheless, the court's specific mention of Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984), and Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984), leaves open the possibility that it was the court's intention to award costs as well as fees to Ganson. Because of that possibility, I include the following discussion of Ganson's costs. The costs which Ganson seeks to recover are itemized in the three Kranz affidavits designated as Petitioner's Exhibits 2, 3, and 3A. Broken out into the three phases of this litigation, the costs claimed are summarized as follows: Administrative Phase Expert witness fee (Dr. Whitley) 100.00 Expert Witness fee (Dr. Munasifi) 125.00 Deposition transcript (Dr. Munasifi) 151.94 Copying charge for medical records 25.00 Miscellaneous copying charges 89.00 Miscellaneous postage charges 3.41 Sales tax on certain expenses 13.16 Total claimed for this phase 507.51 Appeal Phase District Court of Appeal filing fee 100.00 Copying charges--Initial Brief 57.46 Copy/Binding Charge -Reply Brief 19.44 Miscellaneous copying charges 39.15 Miscellaneous postage charges 5.85 Total claimed for this phase 221.90 Attorney Fee Phase Photocopying charge--Proposal For Fees Exhibits--Tallahassee Copy & Printing & 84.80 Total claimed for this phase 84.80 The necessity or reasonableness of the costs are not addressed in the affidavits of Blank and Grizzard. The Kranz affidavits itemize the costs, but contain no opinion concerning the reasonableness of the expert witness fees claimed nor any opinion that the other costs claimed were reasonably and necessarily incurred in the prosecution of Ganson's case. The evidence does show that the client has voluntarily paid all but the last few dollars of the costs claimed, which is some evidence of the reasonableness of the costs. Further, facial examination of the costs claimed reveals nothing out of the ordinary. With regard to the expert witness fees paid to Dr. Whitley and Dr. Munasifi, the necessity of such testimony can hardly be doubted in a case in which the central issue concerned the nature of Ganson's medical condition before and after her employment with the state. Finally, the Department of Administration has not argued that any of the costs claimed are unnecessary or unreasonable. The Department's failure to object notwithstanding, the copying charges (with the exception of the charges for copies of medical records) and the postage charges are not the types of costs that are normally assessed against an opposing party. See Statewide Uniform Guideline For Taxation Of Costs In Civil Actions. Accordingly, the miscellaneous copying charges ($89.00) and miscellaneous postage charges ($3.14) should be deducted from the costs for the Administrative Phase; the initial brief ($57.46), the reply brief ($19.44), and miscellaneous ($39.15) copying charges and the miscellaneous postage charges ($5.85) should be deducted from the costs for the Appeal Phase; and the photocopying charge ($84.80) should be deducted from the costs for the Attorney Fee Phase. With these reductions, the costs Ganson should recover, if it is the intention of the court to award costs, are as follows: Administrative Phase $401.94 Appeal Phase 100.00 Attorney Fee Phase 0.00 Total allowable costs $501.94
The Issue An administrative complaint filed January 19, 1994, alleges that Respondent, Rafael Feliu, violated various provisions of Chapter 475, F.S. by diverting commission funds to himself, by operating as a broker without a valid broker's license and by collecting money in a real estate brokerage transaction without the consent of his employer. The issue in this case is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Rafael Feliu (Feliu) is now and was at all times material a licensed real estate broker-salesperson in the State of Florida, having been issued license number 0538613 pursuant to Chapter 475, F.S. His most recent license was issued, effective 5/3/93, c/o Century 21 Progressive Realty, Inc., 11301 So. Orange Blossom Trail, Orlando, Florida. Between May 1990 and March 1993, Feliu was engaged as a broker- salesperson with Angel Gonzalez of Century 21 Nuestro Realty Co., in Orlando, Florida. The parties' independent contractor agreement, dated May 29, 1990, provides for a sixty percent sales commission to Feliu. On November 28, 1992, Feliu solicited and obtained a contract for the purchase of vacant land and the construction of a house. The real estate commission was to be paid in installments. The buyer under the contract was a friend of Feliu, Luis Rodriguez. Feliu and Rodriguez made an arrangement that Rodriguez would receive a rebate of the commission. While the broker, Angel Gonzalez, denies that he agreed to the arrangement, he does admit that he saw a break-down of disbursement of the commission provided by Feliu and that he signed a letter, prepared by Feliu, describing that break-down, including the rebate to Rodriguez. The first commission check, in the amount of $8,750.00 is made to Century 21 Nuestro and is dated June 4, 1993. Feliu delivered the check to Angel Gonzalez with a handwritten break-out of disbursement, including a $1000 rebate and a $2500 rebate (one-half the agreed $5000) to Luis Rodriguez. Gonzalez refused to disburse the commission as indicated on the break- out, but rather sent Feliu a check on June 8, 1993, for $4554.30, representing his usual share of the commission. The second installment of the commission was paid approximately ten days later. Feliu went to the contractor responsible for paying the commission and asked him to make the check to him, Rafael Feliu. Thus, the second check in the amount of $8750.00 is dated June 18, 1993 and is made out to Rafael Feliu. By this time Feliu had left Century 21 Nuestro and was working with another company. Feliu cashed the check and made the disbursements to Luis Rodriguez. He also retained his share of the balance along with sums of $449.93 and $128.00 that he claimed Nuestro Realty owed him on other sales. He sent the balance, $274.77, to Angel Gonzalez with a letter describing in detail the disbursement of the $8750.00 and explaining that he, Feliu, handled the disbursement because Gonzalez had not complied with regard to the first half of the commission.
Recommendation Based on the evidence presented and discussed above, it is hereby, RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the allegations of violation of section 475.25(1)(b), F.S. (Count I), finding Respondent Rafael Feliu guilty of the remaining counts of the complaint, and issuing a reprimand. DONE AND RECOMMENDED this 18th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0856 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. & 3. Adopted in paragraph 1. Adopted in paragraph 2. & 6. Adopted in paragraph 3. Adopted in paragraphs 5 and 6. Rejected as contrary to the weight of evidence. Adopted in part in paragraph 4; otherwise rejected as unsupported by clear and convincing evidence. Respondent's Proposed Findings Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 8. Rejected as immaterial. Adopted in substance in paragraph 4. Rejected as contrary to the law (see paragraph 13). - 14. Rejected as unnecessary. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Rafael S. Feliu 2260 Whispering Maple Drive Orlando, Florida 32837 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 1, 2011, and the Amended Order of Penalty Assessment issued on April 19, 2011, which are 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 Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 1, 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. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC 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 Section 120.569 and 120.57, Florida Statutes. 2. On April 1, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 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 April 19, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $12,985.36 against LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 4. On April 29, 2011, the Amended Order of Penalty Assessment was. personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC failed to answer the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
Findings Of Fact Petitioner was represented by in this case by Michael Linsky, Esquire, beginning in April 1988. Two complaints of discrimination had been brought against the Department of Corrections by Petitioner. Linsky is an experienced trial lawyer having been admitted to the Florida Bar in 1970. However, he had no experience with discrimination cases prior to these proceedings. The Florida Commission on Human Relations found the Department had committed an unlawful employment practice when it assigned Petitioner to perimeter post duty and transferred him to Polk Correctional Institution in retaliation for having filed a discrimination complaint. Linsky originally took Petitioner's case on a contingency fee basis, but later it was decided between Linsky and Petitioner that the fee would be whatever was awarded by the Commission. Petitioner was only to be responsible for costs. Linsky submitted into evidence as Exhibit 1 a list of dates and hours expended on this case. However, this exhibit was prepared by Linsky's secretary some months after the events depicted and appear grossly exaggerated in some instances. Linsky claims a total of 159.35 hours expended. Linsky testified that his billing rate from April 1988 to December 1988 was $175 per hour, and thereafter it was raised to $190 per hour. Petitioner's expert witnesses contend the average billing rate in the Tampa area for this type of case ranges from $125 to $175 per hour. Respondent's expert witnesses contend the fees awarded run from $100 to $150 per hour. I find the appropriate fee in this case to be $135 per hour. Although Linsky claims to have spent 159.35 hour on this case, including the attorney's fees portion, 1 find that only 100 hours are reasonable. Costs of $423.60 is not disputed.
Recommendation It is recommended that the Department of Corrections be directed to pay Sefsick's attorney $13,500 attorney's fees and $423.60 costs in these proceedings. DONE AND ENTERED this 28th day of September, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1990. APPENDIX Petitioner's proposed findings are accepted, except: 3. This proposed finding is accepted as a recital of the testimony presented, but rejected insofar as inconsistent with H.O. #8. 5. Rejected insofar as inconsistent with H.O. #7. 6 and 7. Accepted as legal argument, but rejected as a finding of fact. Respondent's proposed findings are accepted. COPIES FURNISHED: Michael A. Linsky, Esquire 600 North Florida Avenue Suite 1610 Tampa, FL 33602 Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Louis A. Vargas General Counsel Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 Richard L. Dugger Secretary Department of Corrections 1313 Winewood Boulevard Tallahassee, FL 32399-2500 =================================================================
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
