The Issue By means of two consolidated rule challenge petitions, Petitioner seeks determinations that a specified agency policy and practice is an agency statement which is an invalid unpromulgated rule and that certain specified existing agency rules are invalid for other reasons. In view of the number of and the nature of the issues in these two cases, it is perhaps easiest to describe the issues in each of these cases in the words chosen by Petitioner. The petition in Case No. 04-4398RU describes the issues as follows: Whether Florida Board of Medicine's uniform "nod an wink" nonrule policy and practice of uniform licensure denial to anyone on probation is: (i) an "Agency Statement of general applicability that implements, interprets, or prescribes law or policy;" (ii) and "Agency Statement," defined as a "Rule;" (iii) "Rule," unpromulgated by mandatory and compulsory rulemaking procedures; and (iv) an invalid exercise of delegated legislative authority in violation of § 120.54(1)(a), Fla. Stat. (2003), as defined in § 120.52 Fla. Stat. (2003) and within the meaning of § 120.57(1)(e)? Whether the Board's failure to provide notice to prospective applicants of its unpromulgated rule policy and practice of uniform licensure denial to anyone on probation is [a] violation of due process requirements of United States and Florida Constitutions and of § 120,57(1)(e)(2)(e), Fla. Stat. (2003)? Whether Florida Board of Medicine's final Administrative Order, Order No. DOH- 04-0662-FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Temporary Certificate to practice in Areas of Critical Need -- an Agency action based on an unpromulgated rule -- is null and void, pursuant to §120.56(4)(d), 120.56(4)(e)(5) and 120.57(1)(e), Fla. Stat. (2003)? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(4), Fla. Stat. (2003)? (Emphasis in original.) The petition in Case No. 04-4571RX describes the issues as follows: Whether all the relevant provisions of Rule 64B8-8.001 F.A.C. that punish or sanction Applicants in whole or in part -- as promulgated in Rules 64B8-8.001(1); 64B8- 8.001(2); and 64B8-8.001(2)(b) F.A.C. -- are an invalid exercise of delegated legislative authority in violation of § 120.536(1), Fla Stat. (2000), as defined in § 120.52(8), Fla. Stat. (2003)? Whether the Board's Final Administrative Order, Order No. DOH-04-0662- FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Licensure -- an Agency action based on an invalidated rule - - is null and void? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(3), Fla. Stat. (2003)?
Findings Of Fact Findings incorporated from findings of fact in Case No. 03-4433 Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. (Emphasis added.) The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need be DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.3 Findings based on testimony in Case No. 03-4433 All applications for licensure submitted by physicians licensed in other states are reviewed on their merits by the Florida Board of Medicine. Notwithstanding the Board's long history of denying such applications when the applicant's license in another state is on probation, it is nevertheless possible that the Board might in the future grant an application by a physician whose license is on probation. Because such a possibility exists, the Board does not advise prospective applicants that their applications will be denied if their license in another state is on probation. Facts about the existing rules The existing rule provisions challenged in Case No. 04-4571RX are all portions of Florida Administrative Code Rule 64B8-8.001. That rule contains the disciplinary guidelines regarding physicians regulated under Chapter 458, Florida Statutes. (Unless otherwise noted, all references to the Florida Statutes are to the current version of those statutes.) Subsection (1) and the introductory portion of subsection (2) of that rule read as follows: 64B8-8.001 Disciplinary Guidelines. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. Following the language quoted immediately above, the subject rule describes all of the statutory violations for which discipline may be imposed and for each such violation describes minimum and maximum recommended penalties. With regard to the violation described as "(b) Action taken against license by another jurisdiction," the subject rule provides the following recommendation for a first offense: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00. And for a second offense of the same type, the recommended penalty is stated as follows: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to revocation or denial of the license, and an administrative fine ranging from $5,000.00 to $10,000.00. Facts about disposition of Petitioner's application In the conclusions of law in the Recommended Order in Case No. 03-4433, the undersigned concluded that . . . on the facts in this case, the Board of Medicine clearly has the authority and the discretion to deny the application for the specific reasons stated in the Board's notice of intent to deny, to-wit: "The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction." But it is equally clear that there is nothing in the applicable rules or statutes that mandates denial of the application. The Board of Medicine can lawfully resolve this matter either way. The ultimate recommendation in that Recommended Order was that "a Final Order be issued . . . granting Petitioner's application for a temporary certificate to practice medicine in communities in Florida where there is a critical need for physicians." On June 18, 2004, the Board of Medicine filed a Final Order in Case No. 03-4433 in which it disagreed with the recommendation described above and, based on Petitioner's violation of Section 458.331(1)(b), Florida Statutes, and on "several aggravating factors and policy considerations" described in the Final Order, denied the application for a temporary certificate to practice in an area of critical need. Petitioner sought appellate court review of the Final Order of June 18, 2004. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion. See A. Alexander Jacoby, M.D. v. Florida Board of Medicine, 900 So. 2d 559 (Fla. 1st DCA 2005).
The Issue The sole issue for determination in this cause is whether the failing grade received by petitioner from Professor Kenneth Vinson in a constitutional law course was a result of arbitrariness, capriciousness or bad faith.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: while enrolled as a student in the Florida State University College of Law, petitioner received a failing grade in constitutional law for the winter quarter of 1975 from his professor, Kenneth Vinson. After discussing his grade with Mr. Vinson, petitioner filed an appeal pursuant to the grade appeal policy of the College of Law. A board comprised of three students determined that there was probable cause for the grade appeal and recommended that the appeal be referred to a full committee for hearing. After some delay apparently resulting from the loss of the report of the student board, a committee consisting of two students and three faculty members was appointed. Mr. Vinson did not attend the hearing, but submitted to the committee a memorandum, attaching thereto a completed examination paper with his written comments concerning the answers given. Petitioner appeared and offered testimony concerning his grade. The committee was also supplied with five or six other completed examinations with grades ranging from "A" to "F". These exams were copied in such a manner that neither the student involved nor the grade assigned were known to the committee. The five members of the committee rated these exams and substantially agreed with the grades assigned by Vinson to each paper. Each member of the committee placed petitioner's exam in the "F" category. In its final report, the committee expressed concern with Vinson's lack of sufficient assistance to them in the articulation of his standards and his lack of cooperation in the grade appeal process. Nevertheless, it was the conclusion of the committee that petitioner's appeal should be denied for the reason that Vinson had recognizable standards of grading and that there was no gross deviation in the application of his standards to petitioner's examination paper. The committee's findings are more fully set forth in a ten page decision which was admitted into evidence at the hearing as Exhibit 3. The examination in dispute is a 38-question, short answer exam, a type traditionally and frequently administered in law school courses. In this type of examination, the objectives of the professor are inherent in the examination questions asked. The weight to be assigned each question on such an examination is not always determined by the professor before grading the papers. A cut sheet or master list of desired answers is difficult to prepare for an essay- type examination in law school. As well as evaluating the student's ability to identify the issues involved in a legal problem, the law school professor also seeks to evaluate the student's knowledge of the substantive law relating to an issue. Thus, if a student deviates from the projected issue, he may lose credit for that but gain credit for a good discussion of the erroneously-selected issue. Often, the law professor is seeking a judgmental or subjective response to a question on an examination. In such situations, the preparation of a master answer to all questions would be futile. Among educators, there appears to be no uniform methodology for grading examinations. Those educators often referred to as behaviorists advocate specific written standards and objectives both for evaluation purposes and to facilitate the student's learning. Others referred to as humanists object to a specific statement of objectives and standards, feeling that such would be too limited and constrictive. The difficulty with a non-written, personal approach to evaluation is the assessment of its validity and replicability as to time and another student. One method of testing the reliability of the grading procedure utilized is to have other persons assign a grade to the completed examination. If two or more persons were to assign the same grade as that originally assigned, this would provide replicability and would indicate that the original grade assigned was reasonable and the method of evaluation was reliable. As noted above, the specific statement of standards and objectives is not universally employed by educators, and its nonuse does not imply unethical behavior or that one's teaching methods are invalid. Professor Vinson has been teaching law school courses for over seven years. It was his testimony that, although the mandatory blind or anonymous grading system was not in effect at the time he graded Petitioner's examination, he in fact did not know whose paper he was grading at the time he assigned a grade to Petitioner's paper. All exam papers were graded by him anonymously. Vinson's method of grading was to review five or six exam papers, get a "feeling" for the type of responses received, assign tentative grades to them and then perhaps change those grades based on his conception of the total class curve. He does not find that a cut sheet or set of model answers is helpful in a short essay type examination. When evaluating a paper for grading purposes, Mr. Vinson stated that he compares students' answers with each other and forms an opinion of the student's understanding of the subject matter and class discussions. When grading papers, he also looks at the students' writing style, knowledge concerning the substance of the course, and understanding of legal processes. He further evaluates the student's ability to recognize issues, manipulate legal jargon and apply cases studied and discussed during the course. Vinson applied the same criteria or standard of evaluation to petitioner's examination as he applied to other examinations. The ultimate grade assigned each paper constituted Vinson's value judgment, based upon his experience as a law school professor, as to that student's knowledge concerning the substance of the course taught by him. While Vinson has no written standards or criteria for evaluating a student's performance on an examination, he feels that his standards are implicit in classroom discussions and that the questions asked on his examinations form the answers to be given. The failing grade assigned to petitioner's examination was a result of Vinson's opinion of petitioner's understanding of the subject matter of the course taught.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's amended petition be dismissed. Respectfully submitted and entered this 17th day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1976. COPIES FURNISHED: President Stanley Marshall Florida State University Tallahassee, Florida 32306 Stanley C. Kiser 3220 Jim Lee Road Tallahassee, Florida 32301 Robert D. Bickel University Attorney Suite 309 Westcott Florida State University Tallahassee, Florida 32306 John D. Carlson State Board of Education 400 Barnett Bank Building Tallahassee, Florida 32304
Conclusions Agency Clerk's Office This matter comes before the Agency for Persons with Disabilities (the Agency) following a hearing at the Division of Administrative Hearings and the issuance of a Recommended Order. A copy of the Recommended Order is attached to this Final Order, On March 30, 2012, the Agency sent Respondent a Notice indicating that it was denying its application for licensure. Respondent timely requested an administrative hearing and the matter was referred to the Division of Administrative Hearings where it was assigned to an Administrative Law Judge (ALJ). On May 15, 2012, after reaching a settlement agreement, the parties filed a Joint Motion to Dismiss with Prejudice and on May 15, 2012, the ALJ issued an Order Closing File and Relinquishing Jurisdiction. Based on the foregoing and being otherwise fully advised in the premises, it is hereby ORDERED that Respondent's request for an administrative hearing to contest the Agency's Notice of March 30, 2012, is DISMISSED with prejudice. APD-12-1978-FO | 4 Filed July 18, 2012 3:04 PM Division of Administrative Hearings DONE AND ORDERED, this _/ S date of La ly , 2012, in Tallahassee, Leon County, Florida. a ichael P. Hansen, Director Agency for Persons with Disabilities RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order.’ Information about some sources of possible legal assistance may be found at: http://apd.myflorida.com/customers/legal/resource-listing.htm. ‘The date of the “rendition” of this Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. APD-12-1978-FO | 2 Copies furnished to: Martez Whipple APD Area 15 Office Miracles House, Inc. address of record) Laurel Hopper, Esq. Claudia Llado, Clerk DCF, Legal Counsel Division of Administrative Hearings CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this day of | h y , 2012. Percy A ihe Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Fl 32399-0950 APD-12-1978-FO | 3
Findings Of Fact At all times material hereto Respondent was a licensed dentist in Florida holding license number DN 0001025. Respondent graduated from Emory University Dental School in 1945, thereafter served two years apprenticeship with a practicing orthodontist before opening his own office in Coral Gables, Florida, where he practiced orthodontics for some 25 years before selling his practice and moving to the Tampa Bay area. Respondent is eligible for board certification. In November 1981 Respondent was working as an orthodontist at the Sheppard Dental Clinic in Seminole, Florida. On November 23, 1981, Valarie Rosenfeld went to Respondent to discuss orthodontic treatment to correct a deep overbite and severe overjet. At the time of this visit Miss Rosenfeld was 17 years old and had a severe Class II skeletal discrepancy with a 9.5 degree discrepancy between upper and lower jaws and an overjet of 12 mm. Respondent took some seven photographs of Miss Rosenfeld (Exhibit 2) showing generally the condition of her teeth and her facial profile. Be also took a cephalometric x-ray (Exhibit 3) and a panoramic x-ray (Exhibit 4) of Miss Rosenfeld. Respondent advised Miss Rosenfeld that it would be necessary to extract one tooth in her upper jaw and maybe a second tooth in order to improve her appearance. The purpose of this extraction was to make room in which to move the upper teeth to reduce the overjet. Respondent did not discuss surgery with Rosenfeld or fully explain to her the options available and the probable consequences of each of the options she may elect. Miss Rosenfeld has a thin maxillary bone which does not show up very well on the cephalometric x-ray taken due to a burnout in this x-ray at the location this fact could be determined. Absent adequate bone in which to move teeth it becomes very difficult to obtain much movement. In accordance with orders issued by Respondent Miss Rosenfeld's tooth number 12 was extracted by another dentist at a subsequent visit to the clinic. Respondent next saw Rosenfeld on December 16, 1981, when he put separators between her teeth to make room for bonds. Respondent intended first to install light wire braces to better level the teeth before this was replaced by heavier wire which would be tightened from time to time to move the upper teeth back and the lower teeth forward. Although he testified he planned to reduce the malocclusion using intrusion mechanics Respondent did not discuss with Miss Rosenfeld the headgear which she would have to wear at night during this process or fully explain the procedure to her. Following her December 16 visit, Rosenfeld was seen by a Dr. Bryant, an orthodontist who was replacing Respondent at the Sheppard Dental Clinic. Bryant saw Rosenfeld on December 22, 1981, when he fitted and cemented bonds on the teeth and put in the flexwire to level the teeth. She was next seen at the clinic on January 23 when Bryant religated the flexwire. The next visit on February 15, 1981, Bryant again religated the braces. Rosenfeld was last seen by Respondent on March 20, 1982, when he religated upper arch and observed lower arch. Rosenfeld was seen on April 24, 1982, by Bryant who advised her that three additional extractions would be required to correct the malocclusion. Rosenfeld then decided to obtain a second opinion before losing anymore teeth and went to see another orthodontist, John Harrison. When Dr. Harrison examined Rosenfeld he explained the three options available to her to wit: (1) do nothing, (2) attempt some movement of the teeth to reduce the overjet and overbite and (3) surgery. Dr. Harrison took additional x-rays and attempted to obtain the dental records from Sheppard's Dental Clinic but without much success. By this time Respondent no longer worked at Sheppard's and Harrison became quite frustrated by the lack of cooperation he got in attempting to obtain Rosenfeld's records. He received only the panoramic x-ray. Harrison made models of Rosenfeld's mouth, took cephalometric x-rays, made intra and extra-oral photographs and did quite a number of tracings from the cephalometric x-rays to better ascertain the misalignment of the upper and lower jaws. He discussed the various options with Rosenfeld and, at her request, commenced the mechanical intrusion needed to move the upper teeth back and the lower teeth forward. Harrison would not have extracted tooth number 12 because there is insufficient maxillary bone to allow much movement of the upper teeth or to fill the void created by the extraction. Harrison further opined that the orthodontic problem faced by Rosenfeld is wholly in the lower jaw and this can be fully corrected only by risky and expensive surgery. Attempting to correct the problem by retracting the upper teeth is, in his opinion, the wrong approach. He considers the entire problem is in the lower arch and retracting the upper teeth, which are satisfactory, to obtain a better alignment between the upper and lower teeth, simply creates another problem, viz. changing the existing good profile of the upper lip. Furthermore the thin maxillary bone in which the upper teeth are being moved is not adequate to accomplish much movement of the teeth and when the bonds are removed the upper teeth will likely return to their original position or close thereto. The cephalometric x-ray taken by Respondent on November 23, 1981, was overexposed in the part of the x-ray which would best show Rosenfeld's maxillary bone and thereby alert Respondent to the problem of moving the upper teeth. Dr. Harrison formed his opinion that Respondent's diagnosis and treatment of Rosenfeld was below minimum acceptable standards on his initial assumption (from the records he obtained from Sheppard's Dental Clinic) that the diagnosis and course of treatment were made with panoramic x-rays only. When he learned the day before the hearing that Respondent also had the benefit of the cephalometric x-ray, Harrison hedged his opinion and ultimately concluded that Respondent's diagnosis and course of treatment did reach minimal acceptable standards. Petitioner also called Dr. DeDominico, an orthodontist, who, at the request of Petitioner, examined Rosenfeld and her dental records. DeDominico concurred with Harrison that extraction of tooth number 12 was not indicated and it is unlikely the space vacated by the removal of that tooth can be closed by the movement of the other teeth on the upper jaw. DeDominico further opined that and adequate diagnosis could not be made from the x-rays taken by Respondent due to the "burnout" in this critical area of the cephalometric x-ray which concealed the thinness of Rosenfeld's maxillary bone. Failure to retake this x-ray before embarking on a plan of treatment that required an adequate maxillary bone for success, and that included an unnecessary extraction was, in his opinion, below the minimal acceptable standards for the dental profession. Respondent testified that his more than 20 years experience in orthodontics qualified him to properly diagnose Rosenfeld's problem without doing tracings from the cephalometric x-ray, and that he considered the cephalometric x-ray adequate for the diagnosis that was made. Further, extraction of tooth number 12 was necessary to provide space into which the upper could be moved to accomplish the retraction of the upper teeth desired. He did not explain the available options to Rosenfeld and never considered surgery as a viable option for the orthodontic problem presented by Rosenfeld. He also failed to apprise her of the full implications of the treatment he planned, such as headgear, for the mechanical intrusion or of the limited success to be expected from this procedure. Respondent's expert witnesses, whose depositions were received into evidence as Exhibits 9 and 10, both opined that the diagnosis and treatment of Rosenfeld by Respondent met minimum acceptable standards of the dental profession. One of these witness' credibility is somewhat tarnished by his testimony that the mandible can be induced to grow in an adult. Not only was this testimony deemed incredible by other expert witnesses but also even a layman generally understands that the skeletal structure does not continue to grow after maturity.
The Issue Whether the Statewide Nominating Commission for Judges of Compensation Claims’ “Guidelines of Operation of the Statewide Judicial Nominating Commission” constitutes an unadopted rule, as defined in section 120.52(2), Florida Statutes, in violation of section 120.54(1), Florida Statutes. Filed January 10, 2018 4:52 PM Division of Administrative Hearings
Findings Of Fact 1. Judges of Compensation Claims are appointed by the Governor and charged with conducting administrative proceedings on petitions for benefits filed under Florida’s “Workers’ Compensation Law,” Chapter 440, Florida Statutes. See § 440.45(2) (a) & (c), Fla. Stat.; Fla. Admin. Code R. 600Q-6.105. These Judges are appointed for four-year terms, with the Governor having the discretion —- as qualified below - to reappoint a sitting Judge for a subsequent term. § 440.45(2) (c), Fla. Stat. The statute does not limit the number of times the Governor may reappoint a Judge of Compensation Claims, and does not prohibit the Governor from appointing a qualified person to serve non-consecutive terms as a Judge. 2. The Statewide Nominating Commission for Judges of Compensation Claims (“Commission”) is charged with making a threshold eligibility determination as part of the reappointment process. Prior to the expiration of a judge’s term of office, the statewide nominating commission shall review the judge's conduct and determine whether the judge’s performance is satisfactory. Effective July 1, 2002, in determining whether a judge’s performance is satisfactory, the commission shall consider the extent to which the judge has met the requirements of this chapter, including, but not limited to, the requirements of ss.440.25(1) and (4) (a)-(e), 440.34(2), and 440.442. If the judge’s performance is deemed satisfactory, the commission shall report its finding to the Governor no later than 6 months prior to the expiration of the judge’s term of office. The Governor shall review the commission’s report and may reappoint the judge for an additional 4-year term. If the Governor does not reappoint the judge, the Governor shall inform the commission. The judge shall remain in office until the Governor has appointed a successor judge in accordance with paragraphs (a) and (ob). If a vacancy occurs during a judge’s unexpired term, the statewide nominating commission does not find the judge’s performance is satisfactory, or the Governor does not reappoint the judge, the Governor shall appoint a successor judge for a term of 4 years in accordance with paragraph (b). § 440.45(2)(c), Fla. Stat. (emphasis added). Without a reported determination of “satisfactory” from the Commission, the Governor is required to appoint a successor Judge. In such an instance, the Governor has no legal authority to reappoint the incumbent. 3. Other than reporting on whether a sitting Judge’s performance has been satisfactory, the Commission is not statutorily authorized to make a recommendation on reappointment. 4. The Office of the Judges of Compensation Claims (“Office”) is a unit within the Department of Management Services comprised of all Judges of Compensation Claims and headed by a Deputy Judge of Compensation Claims. § 440.45(1) (a), Fla. Stat. The Office has the duty to adopt rules, including those for the Commission to follow in reviewing the performance of incumbent Judges.} The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section. Such rules must include procedural rules applicable to workers’ compensation claim resolution, including rules requiring electronic filing and service where deemed appropriate by the Deputy Chief Judge, and uniform criteria for measuring the performance of the office, including, but not limited to, the number of cases assigned and resolved, the age of pending and resolved cases, timeliness of decisions, extraordinary fee awards, and other data necessary for the judicial nominating commission to review the performance of judges as required in paragraph (2) ({c). [emphasis added] § 440.45 (4), Fla. Stat. This statutory mandate was passed sixteen (16) years ago and has remained essentially unchanged since. See Ch. 2001-91, § 26, Laws of Fla. (2001) .? 5. Pursuant to this mandate, the Office adopted the “Rules of Procedure for Workers’ Compensation Adjudications,” Chapter 600-6, Florida Administrative Code, which became effective February 23, 2003. The Chapter contains individual rules that address initial pleadings, discovery, mediation, hearings, and other procedural matters. 6. None of the rules in this Chapter contain uniform criteria for measuring performance. None of the rules cite section 440.45(2) (c), Florida Statutes, as a “law implemented.” There are no rules in this Chapter or adopted elsewhere for the Commission to follow in determining whether an incumbent Judge’s performance has been satisfactory and reporting this determination to the Governor. 7. In the absence of rules, the Commission follows a document titled “Guidelines of Operation of the Statewide Judicial Nominating Commission” (“Guidelines”) in “review[ing] the applications of Judges of Compensation Claims who seek reappointment.” Guidelines, § I.3 The Guidelines require applicants to complete an application form by a specified deadline, establish procedures for public comment, and allow the Commission to pose “questions deemed pertinent to each applicant’s fitness and qualifications to hold the judicial office.” Id., §§ I & IV. Section V of the Guidelines, titled “Standards and Qualifications; Criteria,” provides that [n]o nominee shall be recommended to the Governor for appointment unless the Commission finds that the nominee meets all constitutional and statutory requirements and is fit for appointment after full and careful consideration which consideration may include, but [is] not necessarily limited to, the following criteria: (a) Personal attributes (1) Personal integrity (2) Standing in community (3) Sobriety (4) Moral conduct (5) Ethics (6) Commitment to equal justice under law (b} Competence and experience (1) General health, mental and physical (2) Intelligence (3) Knowledge of law (4) Professional Reputation (5) Knowledge of and experience in the court involved (c) Judicial capabilities (1) Patience (2) Decisiveness (3) Impartiality (4) Courtesy (5) Civility (6) Industry and promptness (7) Administrative ability (8) Possible reaction to judicial power (9) Temperament (10) Independence 8. The Guidelines do not contain uniform criteria or a procedure for the Commission to report whether a judge’s performance has been satisfactory. Rather, the Guidelines direct the Commission to take the following action at the conclusion of the review process: When considering a Judge for reappointment, by majority vote, the Commission shall vote upon whether to recommend each particular judge for reappointment. The names of each judge considered by the Commission shall be certified to the Governor in writing, which shall include only the judge’s name and whether recommended or not. 9. The Guidelines bear an effective date of November 22, 2013, and provide that they “may be amended by majority vote of the Nominating Commission” and “may be readopted periodically at the discretion of the Commission members.” Id., § XII. The Guidelines contain no mention of the rulemaking process under Chapter 120, Florida Statutes. 10. The Guidelines have not been adopted by the Office or the Commission as a rule pursuant to the rulemaking procedures in section 120.54, Florida Statutes. The Commission has no rulemaking authority. See Fla. Att’y Gen. Op. 92-72 (1992). 11. Petitioner Gerardo Castiello is a resident of Dade County, Florida. Petitioner was appointed as a Judge of Compensation Claims for the Miami District of the State of Florida, Office of the Judges of Compensation Claims, at some point prior to 2013. In November 2016, Petitioner was serving as a Judge and seeking reappointment for another four-year term. 12. On November 1, 2016, the Commission conducted a hearing to consider Petitioner’s application for reappointment. The Commission did not vote or otherwise make a determination of whether Petitioner’s performance was satisfactory. Instead, the Commission applied the Guidelines in reaching its decision. This decision is memorialized in a letter sent by the Commission to the Governor on November 14, 2016, which contains the following statement regarding Petitioner: “The Commission did not nominate Hon. Gerardo Castiello (MIA) for reappointment.” 13. Petitioner commenced this proceeding on January 20, 2017, when, by and through counsel, he filed a Petition Challenging Agency Statements Defined as Undaopted Rules with the Division of Administrative Hearings (“DOAH”). The Petition alleges that the Guidelines meet the definition of “rules,”4 have not been adopted as rules as required by statute,® and have been relied upon by the Commission as “the basis of its denial and rejection of the Petitioner’s reappointment application.” Petition { 38. Petitioner requested a formal administrative hearing, a determination that the Guidelines are unadopted rules, and related relief. Id. @ 42. 14. DOAH did not assign an administrative law judge to preside over this proceeding within ten days after receipt of the petition as required by section 120.56(1) (c), Florida Statutes. On February 22, 2017, Petitioner filed a Motion for Appointment of Administrative Law Judge, and Notice of Objection to Consideration by Administration Commission. 15. Petitioner then filed petitions with the First and Third District Courts of Appeal beginning in February 2017 to address this issue and related matters. Among other relief, these petitions sought to compel DOAH to appoint an administrative law judge. The Commission objected to this relief, in part, on the basis that “DOAH is the real party in interest,” and this matter has “been referred to the Administration Commission for appointment of an attorney to hear the case pursuant to § 120.80(1), Fla. Stat.” Respondent’s Response to Petitioner’s Petition, Third DCA Case No. 3D17-0341 (March 8, 2017). 16. The Third District Court of Appeals ultimately denied Petitioner’s petition for writ of prohibition, writ of mandamus, and/or alternative writs and remedies. Order, Third DCA Case No. 3D17-0341 (March 29, 2017). The Court subsequently denied Petitioner’s motion for written opinion, clarification, rehearing, certification, and/or rehearing en banc. Order, Third DCA Case No. 3D17-0341 (May 3, 2017). 17. Approximately four months later, without any action by the Administration Commission, undersigned was designated by DOAH Chief Judge Cohen as the “hearing officer to conduct the hearing” in this matter under the authority of section 120.65(5), Florida Statutes. Order of Assignment at 1 (September 18, 2017). That section allows DOAH to assign a full-time state employee as a hearing officer “[i]f the division cannot furnish a division administrative law judge promptly in response to an agency request.” § 120.56(5), Fla. Stat.® 18. Based on the assignment of undersigned, the First District Court of Appeals dismissed Petitioner’s petition for writ of mandamus as moot. See Castiello v. Florida Div. of Admin. Hearings, 229 So. 3d 861 (Fla. lst DCA 2017), reh'g denied (Nov. 8, 2017). 19. After filing the petition that commenced this proceeding and while the petitions for various writs were pending before the District Courts of Appeal, Petitioner propounded discovery to Respondent. On February 13, 2017, Petitioner served on Respondent and filed with DOAH a request for admissions. Respondent did not timely answer or object to this request. 20. On September 20, 2017, after undersigned was assigned as the Hearing Officer, counsel for Petitioner sent to counsel for Respondent an e-mail stating that the request would be deemed admitted due to the failure to respond. The Commission did not respond to this e-mail, answer the request, or file an objection. 21. On December 5, 2017, Petitioner filed a Motion for Summary Order. As support for the Motion, Petitioner asserts 10 that the material facts in this proceeding are undisputed because of Respondent’s failure to respond to the February request for admissions. More than 30 days (indeed, over 9 months) have passed since the request for admissions was serviced on the SNC, and the SNC has never responded to Castiello’s request for admissions. The SNC has never moved for additional time to respond, and has not attempted to demonstrate any excusable neglect for failing to timely respond. Nor is there any possibility of any excusable neglect for the SNC’s failure to respond -— especially after the Petitioner reported the SNC’s failure to response at least three different times. 22. Respondent did not file a response to the Motion for Summary Order as allowed under Rule 28-106.204, Florida Administrative Code, and the time for doing so has expired. Respondent has not answered or objected to the request for admissions.
Other Judicial Opinions A party who is adversely affected by this Summary 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 proceeding 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. 21
Findings Of Fact At all times pertinent to the allegations herein the Division of Real Estate was the state agency responsible for the licensing of real estate sales persons and brokers and the regulation of the real estate profession in Florida. Respondent, Diana C. Verdi, was licensed as a real estate salesperson under license number 0545114, and Respondent, Realtec Group, Inc., was licensed as a real estate broker under license number 0273784. Respondent, Verdi, was employed by Respondent, Realtec, at its office at 3474 Tampa Road, Palm Harbor, Florida. On October 23, 1993, Respondent Verdi, while working for Respondent, Realtec, solicited and obtained an offer from James and Maureen Herhold, to purchase residential property owned by J. and K. Griffin. The contract called for the placement of a $50,000 non-refundable deposit with Realtec, and allowed the Herholds to move in on October 30, 1993, with closing to be held on November 30, 1993. The contract also provided that once the Herholds moved into the house, the Griffins would no longer be responsible for any repairs or maintenance needed by the property. Prior to moving in, the Herholds requested that Respondent, Verdi, obtain for them a seller's disclosure statement which would list any material defects in the property known to the sellers. In that regard, the Griffins' listing agent, Marta Shank, had previously requested they prepare such a statement. The statement was prepared on August 20, 1993, and reflected that the only known defect was a shower leak which had purportedly been fixed and a shower wall which had purportedly been replaced. Notwithstanding the Herholds repeatedly requested the disclosure statement from Respondent, Verdi, and notwithstanding such a statement had been prepared by the Griffins, the statement was not furnished to Respondent, Verdi, by Ms. Shank and, thereafter, to the Herholds until after they moved into the property. Consistent with the terms of the contract, the Herholds were required to pay for the repairs to the shower and shower wall which, it appears, were not properly repaired prior to their move into the property. At closing the Herholds requested the Griffins reimburse them for the cost of the repairs, which was not done. In the interim, however, and before the Herholds moved into the property, Respondent, Verdi, as was her custom in all residential sales, insisted that the Herholds obtain an independent inspection of the home. Mr. Herhold admits she did this. She claims she would not sell a home without this being done. This inspection, conducted by an inspector of the Herholds' choosing, failed to disclose any defect in the shower or shower wall. Respondent, Verdi, also suggested that since her repeated efforts to obtain the disclosure statement were unsuccessful, Mr. Herhold contact the Griffins or their agent directly. She also suggested to him that if he were not satisfied with the condition of the house, or if he had any qualms about moving in without the disclosure statement, he should not move in until he received it. This was verified by Ms. Kissner. Herhold elected not to do this, however, because he feared he might lose his deposit. Respondent, Verdi, represents herself as being an experienced and successful real estate salesperson, and there appears little reason to doubt that representation. She contends that though she never went to Shank's office to pick one up, she repeatedly asked Ms. Shank, the selling agent, for a disclosure statement as she always does, and her testimony in this regard is supported by that of both Ms. Kissner and Mr. Scarati. Both repeatedly tried to contact the selling office to obtain a disclosure statement but their calls were either nonproductive or not returned. There is some indication that when Ms. Verdi asked Ms. Shank for a disclosure statement, she was told that none existed. After the closing, when Mr. Herhold was unable to obtain a reimbursement from the Griffins for the cost of repairs, he filed suit against Realtec, Verdi, Shank and her agency, Coldwell Banker and his own inspection service. He admits that, at court, when he was asked by the judge who he believed was responsible, he did not know. He sued Verdi because he had asked her for a disclosure statement which she did not give him. He claims the sale was not an "as is" sale. At hearing, he was awarded $835.20 plus costs against Verdi and Realtec. She did not pay right away and sought the advice of counsel. When Herhold found she was listing her own home for sale, he filed a lien against it. As a result of that action, because she determined that fighting the lien would cost more than the amount involved, she paid the judgement even though she believed the judgement to be in error. Realtec paid nothing. No evidence was presented as to exactly when the judgement was satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint filed in this matter against Respondents Diana C. Verdi and Realtec Group, Inc., t/a Re/Max Realtec Group, be dismissed. RECOMMENDED this 6th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1995. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802 Diana C. Verdi 2474 Tampa Road Palm Harbor, Florida 34684 Realtec Group, Inc. percentRe/Max Realtec Group 3474 Tampa Road Palm Harbor, Florida 34684 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Did Respondent Barbara S. Jones deny Petitioner Lynda Dianne McCloud housing because of her race (black) in violation of the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is an African-American (black) female who alleges that Respondent denied her housing because of race (black) in violation of the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes. Respondent is the owner of nine rental duplexes located on Scottsdale Court, in Zephrhills, Florida, which Respondent built in 1982. Since owning and managing these units, Respondent has never previously been accused of violating the Fair Housing Act. Respondent derives her primary income from the rental of the units located on Scottsdale Court. When vacancies occur in the apartments on Scottsdale Court, Respondent regularly advertises the availability in the Pasco Shopper. In February 1997, Petitioner, in response to an advertisement in the Pasco Shopper, first contacted Respondent about an apartment. Respondent advised Petitioner that there were no apartments currently available but that one would probably become available later. On or about February 26, 1997, Respondent advertised the availability of a two-bedroom, one-bath apartment located at 38547 Scottsdale Court. On Saturday, March 1, 1997, Petitioner contacted Respondent by leaving a telephone message in response to the advertisement in the Pasco Shopper for the apartment located at 38547 Scottsdale Court. On Saturday, March 1, 1997, Respondent returned the telephone call to Petitioner, discussed the apartment located at 38547 Scottsdale Court, and set an appointment for 2:00 p.m. the next day to personally show the unit to Petitioner. On Sunday, March 2, 1997, when Respondent returned home from church, she received a telephone message from Petitioner advising Respondent that Petitioner would not be able to make the meeting scheduled for 2:00 p.m. that day and asking that Respondent call Petitioner. On Sunday, March 2, 1997, at approximately 1:30 p.m., Respondent returned the call to Petitioner and rescheduled the appointment for 7:00 p.m. that evening. On Sunday, March 2, 1997, Respondent traveled from her home in Dade City, Florida, to the apartment in Zephyrhills, Florida, to attend the meeting to show Petitioner the apartment at 38547 Scottsdale Court. Petitioner failed to attend that meeting. At approximately 8:00 a.m. the next morning, Monday, March 3, 1997, Respondent received a telephone call from Petitioner advising that Petitioner had missed the appointment because she had to take someone to the emergency room at East Pasco Medical Center for treatment. Petitioner expressed her continued interest in the apartment and an appointment to see the unit was rescheduled for 10:15 a.m. that morning. On Monday, March 3, 1997, Respondent showed the apartment located at 38547 Scottsdale Court to Petitioner. After showing Petitioner the apartment, Respondent verbally explained the details regarding the rental rate and deposits, and confirmed those details in writing on a document provided to Petitioner. Petitioner offered no objection to the manner in which Respondent required payment of rent and security deposits. The manner in which Respondent described the payment of rent and security deposits for the apartment located at 38547 Scottsdale Court to Petitioner is the same manner in which Respondent requires the payment of rent and security deposits on other units. It is also the same manner in which Respondent required payment for the apartment located at 38547 Scottsdale Court when rented to the current tenant, Deanna Stamper. On the morning of March 3, 1997, Respondent also provided Petitioner with a tenant application. This tenant application was the same form used by Respondent for all of the units at Scottsdale Court. Petitioner did not complete the tenant application or provide any deposit to Respondent on March 3, 1997, while meeting with Respondent. Respondent advised Petitioner that she did not hold apartments for any prospective tenant until he or she had completed an application and returned it to Respondent with a deposit. Despite these instructions, Petitioner advised Respondent that Petitioner would take the application with her, complete it at home, and return the application by mail with a deposit. When Respondent returned to her home after showing the apartment to Petitioner, she received a telephone message from another prospective tenant, Deanna Stamper, requesting an opportunity to see the apartment. Respondent returned to the apartment at approximately 12:15 p.m. on Monday, March 3, 1997, and showed the apartment to Deanna Stamper. Respondent provided Deanna Stamper with a tenant application which Deanna Stamper completed while at the apartment, and provided Respondent with a deposit. Respondent returned to her home after showing the apartment to Deanna Stamper, verified the information provided on her application, and approved Deanna Stamper as the tenant for apartment located at 38547 Scottsdale Court. At the time Respondent approved Deanna Stamper as the tenant for the apartment, Respondent had received neither a completed application nor a deposit from Petitioner. After approving Deanna Stamper as the tenant for the apartment located at 38547 Scottsdale Court, Respondent telephoned Petitioner at approximately 3:00 p.m. on Monday, March 3, 1997, to advise Petitioner that the unit at 38547 Scottsdale Court was no longer available but that another unit two doors away, at 38553 Scottsdale Court, would become available in the near future but Respondent was not sure of the date that it would be available. When Respondent advised Petitioner that the apartment was no longer available, Petitioner hung up the telephone. Later that afternoon, Petitioner called Respondent back by telephone, and was verbally abusive toward Respondent, and claimed that Respondent had discriminated against her because she was black. In the rental application process, Respondent uses the same application form for all tenants and all apartments. Respondent provided the same information regarding payment of rent and deposits to Petitioner that she provides to all other prospective tenants. Respondent uses the same method of processing and approving all applications for prospective tenants. Prior to showing the apartment to Petitioner, Respondent had approved other African-American tenants. Currently, Respondent has African-American tenants. Based on Petitioner's past history and her record, it is clear that Petitioner would not have qualified to rent the apartment at 38547 Scottsdale Court even if she had filed the application with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition For Relief and denying Respondent's request for attorney's fees. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1998. COPIES FURNISHED: Lynda Dianne McCloud Post Office Box 2050 Zephyrhills, Florida 33539-2050 William A. Kebler, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 210 St. Petersburg, Florida 33731 Laura Jones, Esquire Hill, Ward and Henderson, P.A. Post Office Box 2231 Tampa, Florida 33601 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner's Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule (Petition) should be dismissed on the ground that the "challenged rule in this proceeding has been effectively repealed by the Florida Legislature by Section 626.854(11), Florida Statutes, effective October 1, 2008," as requested by Respondent.
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
