Findings Of Fact Prior to May 3, 1988, Petitioner was employed by Respondent as a Regional Toll Manager and had achieved permanent status in the career service system. In December 1987, Respondent requested that the Florida Department of Administration (DOA) upgrade the position of Regional Toll Manager from pay grade 20 to pay grade 25 and to create a new position of Assistant Regional Toll Manager. Effective May 3, 1988, DOA granted Respondent's requests in part. The position of Regional Toll Manager was upgraded from pay grade 20 to pay grade Instead of creating a new position, DOA assigned the duties that an Assistant Regional Toll Manager would have performed to an existing position entitled Operations and Management Consultant I. The Operations and Management Consultant I position was assigned to pay grade 21. DOA advised Respondent that no employee was to receive an increase in pay as a result of the change in pay grade for the Regional Toll Manager position unless the employee was not receiving the minimum pay for pay grade 23. Petitioner was being paid below the minimum for pay grade 23 and was entitled to an increase in pay as of May 3, 1988. Petitioner did not receive the pay increase to which she was entitled and was underpaid between May 3, 1988 and June 17, 1988. The Operations and Management Consultant I position has less responsibility than the Regional Toll Manager position. While Respondent was in the process of trying to upgrade the Regional Toll Manager position, it learned that the Legislature intended to exempt the position of Regional Toll Manager from the career service system. In anticipation of the Legislature's action, Respondent decided, after DOA's action on May 3, 1988, to assign all existing Regional Toll Managers to the position of Operations and Management Consultant I. Effective June 17, 1988, Petitioner and the other Regional Toll Managers throughout the State were transferred to the Operations and Management Consultant I position. Respondent intended to promote Petitioner from pay grade 20 to pay grade 21. As of June 17, 1988, Petitioner received a pay increase that exceeded the minimum salary for pay grade 23. On September 7, 1988, DOA advised Respondent by letter that Petitioner had not been promoted from pay grade 20 to pay grade 21 on June 17, 1988. DOA's position was that Petitioner's pay grade had been automatically increased to pay grade 23 on May 3, 1988 and that Petitioner's transfer to a pay grade 21 position was, by definition, a demotion. DOA's letter advised Respondent that Petitioner's pay increase on June 17, 1988, violated pertinent provisions of the Florida Administrative Code and instructed Respondent to take corrective action. As of October 14, 1988, Respondent reversed the increases in pay that had gone into effect for Petitioner on June 17, 1988. All former Regional Toll Managers who had received an increase following his or her transfer to the Operations and Management Consultant I position were treated the same by DOA and by Respondent. On October 18, 1988, David S. Ferguson, Respondent's Personnel Officer, wrote a letter to Petitioner which explained the position that DOA had taken in this matter. Respondent advised Petitioner that, at DOA's instructions, it was reversing the pay increase that had gone into effect June 17, 1988, and that it would address the recovery issue with DOA and advise her after a response was received. On November 9, 1988, Mr. Ferguson wrote Petitioner a letter which clarified certain computations made in his letter to Petitioner dated October 18, 1988, and which advised Petitioner of the request Respondent was making of DOA in an effort to resolve the matter. On November 9, 1988, in a letter addressed to the Secretary of DOA, Mr. Ferguson requested that Petitioner and the other, similarly situated employees be granted a onetime lump sum increase in salary equivalent to the overpayments instead of requiring repayment from them. On December 29, 1988, DOA refused Respondent's request to resolve the matter through a onetime lump sum payment and repeated its instructions for Respondent to reclaim any overpayment. On May 17, 1989, Respondent advised Petitioner that DOA had refused its suggestion to resolve the matter and demanded repayment in the net amount of $122.61 as the overpayment received by Petitioner. The net amount owed was properly calculated by Respondent and made appropriate adjustments for the underpayments to Petitioner between May 3, 1988 and June 17, 1988. Petitioner was not prejudiced by the delay between December 29, 1988, the date DOA rejected Respondent's settlement proposal, and May 17, 1989, the date Respondent notified Petitioner of its intended final action, because the amount demanded by Respondent does not include interest or penalty. Respondent advised Petitioner that its letter of May 17, 1989, constituted notice of Respondent's intent to take final agency action. Thereafter, Petitioner made timely demand for a formal hearing of this matter and this proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner has received overpayments in the net amount of $122.61 and which requires that Respondent make arrangements with Petitioner for the repayment of the sum of $122.61 by payroll deduction or by other means agreeable to the parties. DONE AND ENTERED this 12th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 January, 1990. COPIES FURNISHED: Karen C. Greenawalt, pro se 2922-1B Northwest 55th Avenue Fort Lauderdale, Florida 33133 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On November 10, 2009, the Department issued an Administrative Complaint attached hereto as exhibit "A." 2. On April 27, 2010, a hearing in this cause was held before the Honorable Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings. 3. On July 14, 2010, the Honorable Lawrence P. Stevenson issued a Recommended Order, a copy of which is attached as Exhibit "B." The Statement of the Issues, Preliminary Statement, Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $500.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the agency clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk DONE AND ORDERED this 2O day of Angus ,2010. L. Veach, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Appeal For This Case Unless expressly waived, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within thirty (30) days rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and Section 120.68, Florida Statutes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Boardwalk Fries, c/o Halim Hanna, 848 Eagle View Drive, Tallahassee, Florida 32311; by regular U.S. Mail to the Honorable Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monrog .@breet, Tallahassee, Floxida 3¥399-2202, this day of ~ , 2010. - ° For the Division of Hotels and Restaurants
The Issue The issue for determination is whether the original and amended petitions for hearing were filed late and should be dismissed pursuant to Section 120.569(2)(c), Florida Statutes (1997), and Florida Administrative Code Rule 62-110.106(3)(b). (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to those promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact On May 10, 1999, Sea Ray filed an application for an air construction permit with the Department. The application seeks a permit to construct a new fiberglass boat manufacturing facility in Merritt Island, Brevard County, Florida. On October 7, 1999, the Department issued an Intent to Issue Air Construction Permit (the "Notice of Intent"). On the same date, the Department mailed copies of the Notice of Intent, a Public Notice of Intent to Issue Air Construction Permit (the "Public Notice"), and a draft permit to interested persons including Sea Ray. On October 11, 1999, Petitioner telephoned the Department's Bureau of Air Regulation and requested a copy of correspondence between Sea Ray and the Department. Petitioner also requested that the Department place Petitioner on the list of interested persons. On October 11, 1999, the Department mailed Petitioner, by certified mail return receipt requested, copies of the Notice of Intent, the Public Notice, and the draft permit. Petitioner received the documents from the Department on October 14, 1999, and executed the return receipt on the same date. Both the Notice of Intent and the Public Notice included a notice of rights to substantially affected parties. In relevant part, the notice of rights stated: A person whose substantial interests are affected by the proposed permitting . . . may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57 of the Florida Statutes. The petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station #35, Tallahassee, Florida, 32399-3000. . . . Petitions filed by any persons other than those entitled to written notice under Section 120.60(3) . . . must be filed within fourteen days of publication of the public notice or within fourteen days of receipt of this notice of intent, whichever occurs first. . . . The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, or to intervene in this proceeding and participate as a party to it . . . . (emphasis supplied) Petitioner incorrectly concluded that the 14-day filing requirement did not begin to run when he received the Notice of Intent on October 14, 1999, but began to run on a future date when the Department published the Public Notice in the newspaper. In reaching that conclusion, Petitioner did not rely on any representations by any agent or employee of the Department or Sea Ray. Neither Respondent made any representations to Petitioner. On October 31, 1999, the Department published its Public Notice in The Florida Today. No substantive differences exist between the Public Notice published on October 31, 1999, and the Notice of Intent received by Petitioner on October 14, 1999. Petitioner had 14 days from October 14, 1999, or until October 28, 1999, to file his original petition for hearing. Petitioner filed his original petition on November 15, 1999. The original petition was filed 18 days late. On December 15, 1999, the Department dismissed the original petition on the grounds that the petition failed to provide the information required in Section 120.569(2)(c) and the rules incorporated therein. The dismissal was without prejudice as to the grounds for dismissal as required by Section 120.569(2)(c). The dismissal gave Petitioner 15 days from December 21, 1999, the date in the certificate of service, to file an amended petition curing the informational defects in the original petition. The dismissal gave Petitioner until January 5, 2000, to file an amended petition for hearing. Petitioner filed the amended petition one day late on January 6, 2000. Even if the original petition were deemed timely filed on November 15, 1999, the 14th day after publication of the Public Notice on October 31, 1999, the amended petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the original and amended petitions as untimely filed. DONE AND ENTERED this 4th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 Gary Hunter, Jr., Esquire Angela R. Morrison, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 123 South Calhoun Street (32301) Tallahassee, Florida 32314
The Issue The sole threshold issue in this bifurcated proceeding is whether Petitioner has met her burden of proving grounds for equitable tolling as a defense to the admitted untimely filing of Petitioner's request for an administrative hearing. Consideration of the merits of Petitioner's challenge to the initial agency action was deferred, pending the threshold determination of whether the challenge can be heard.
Findings Of Fact Petitioner's husband was a State of Florida employee. He passed away in 1999. As the surviving spouse of a former State of Florida employee, Petitioner is entitled to, and has obtained coverage under, the state's group health insurance since 1999. Since sometime in 2002, Petitioner has also had Medicare health care coverage. However, Petitioner continued to pay the individual monthly premium rate for state group health insurance through May 2010, instead of the lower monthly rate applicable to someone who also has Medicare coverage. In May 2010, Petitioner submitted a written request to change her state group health insurance coverage level to accurately reflect the lower monthly Medicare rate and to refund the difference in premiums between the regular premium rate she had been paying and the lower Medicare rate from May 2002 to May 2010. Petitioner's May 2010 written request for changed coverage and reimbursement of overpaid premiums was not offered into evidence. By certified letter dated June 2, 2010, the Department responded to Petitioner's May 2010 written request. The Department advised that it was granting Petitioner's request to change her coverage level to reflect that she has Medicare coverage and that Petitioner's request for a refund was granted, in part, and denied, in part. The letter advised Petitioner of her right to an administrative hearing to contest the partial denial and enclosed an informational page specifying how and when to request such a hearing. In addition, enclosed with the letter were copies of Florida Administrative Code Rules 28-106.201 and 28-106.301, which codify the manner for initiating proceedings when there are disputed issues of material fact and when there are no disputed issues of material fact, respectively. The Department's certified letter was delivered to Petitioner's home on June 5, 2010. Petitioner was at home and personally signed the certified receipt for the Department's letter on June 5, 2010. Petitioner testified that she does not remember answering the door when the Department's certified letter was delivered to her home, nor does she remember signing the certified receipt, even though she acknowledged that she did so on June 5, 2010. Petitioner and her daughter, Ms. Viegas, testified that Petitioner has had mental health issues since 2001, when Petitioner became depressed not too long after her husband died in 1999. Petitioner testified that she has been seeing a psychiatrist since 2008 and has been taking medication prescribed by the psychiatrist for depression. No evidence was presented to establish how frequently or infrequently Petitioner was seeing a psychiatrist, nor was any evidence presented with respect to the type or dosage of medication Petitioner has taken. Neither the psychiatrist whom Petitioner said she had been seeing, nor any other expert testified with respect to Petitioner's medical or psychological condition, and no medical records were offered into evidence. Throughout the years of Petitioner's chronic depression, Petitioner has lived in her own home, at times alone or with a gentleman who lives there now and is now 81 years old. In addition, in June 2009, Ms. Viegas moved in with Petitioner and has lived there continuously since that time. Ms. Viegas is 39 years old and is unemployed. Since Ms. Viegas does not work, she is present at the home 90 percent of the time. Ms. Viegas testified that the reason she moved in with Petitioner was because Petitioner needed her help with business and other needs and, also, because Ms. Viegas broke up with her boyfriend with whom she had been living. Petitioner's other daughter, Cindy, also helps out. Cindy is a regular visitor and helps with household tasks, such as doing laundry, paying bills, and calling banks on Petitioner's behalf. According to Ms. Viegas, Petitioner's chronic depression got worse in late January or early February 2010 and remained bad until sometime in July 2010, when Petitioner's medication was changed. As described by Petitioner and Ms. Viegas, in Petitioner's worsened state for this six- or seven-month period in 2010, Petitioner slept most of the day in addition to at night. Petitioner did not clean the house or cook her own meals, and she did not bathe until Ms. Viegas pushed her to bathe. Because Petitioner was not cooking her own meals, she either ate peanut butter sandwiches or went out to eat at a restaurant. Petitioner testified that during this period when her depression worsened, she frequently went out to eat. Petitioner also acknowledged that she has had a valid driver's license and a car and that she would drive herself around, sometimes alone with no passengers. Despite the fact that Ms. Viegas moved in with Petitioner to help with her business and other needs, Ms. Viegas testified that her mother was able to keep up with her own business affairs pretty well until she got worse in January or February 2010, at which point bills frequently would go missing, and Ms. Viegas would realize that when second notices were received. Even before Petitioner got worse in early 2010, important mail, such as utility bills, would occasionally go missing. Ms. Viegas explained that she was reluctant to impose tighter controls to address this chronic issue, because she did not want to give her mother the impression that she (Ms. Viegas) did not have faith in her mother's ability to handle her own business. In addition, Ms. Viegas was unwilling to restrict her mother's freedom to walk outside to the mailbox to collect the mail or to get the mail while she was out walking their poodle. Instead, Ms. Viegas just dealt with the repercussions of the occasional lost mail. Ms. Viegas acknowledged that the problem of missing important mail, such as bills, became a more frequent occurrence when Petitioner's condition got worse in January or February 2010. Still, Ms. Viegas and Petitioner did nothing different with regard to the mail routine. No evidence was presented that Petitioner's depression ever became so severe that Ms. Viegas and/or Petitioner contemplated hospitalization or some form of more intensive treatments beyond periodic office visits with a psychiatrist. Petitioner has not been adjudicated incompetent of handling her own affairs, and no guardian has been appointed to manage Petitioner's affairs, nor was there evidence that such a step was ever contemplated. The evidence suggested to the contrary-- that Petitioner led an independent lifestyle and that Ms. Viegas was unwilling to, and apparently believed it was unnecessary to, restrict Petitioner's freedoms. Petitioner testified that in July 2010, her psychiatrist changed her medication, and after that, Petitioner felt better and began cleaning house, cooking, and doing other things she had not been doing. Petitioner found the letter from Respondent, showed the letter to Ms. Viegas, and asked Ms. Viegas to help. Ms. Viegas prepared a letter requesting an administrative hearing to dispute the partial denial of Petitioner's overpayment refund request. Ms. Viegas testified that she knew enough to prepare the letter without Petitioner's help, because Ms. Viegas knew all about Petitioner's dispute with the Department. Ms. Viegas had no problems understanding from the Department's notice how to request an administrative hearing for Petitioner. Ms. Viegas reviewed her draft with Petitioner to make sure there was nothing Petitioner wanted to change or add. The request for administrative hearing prepared by Ms. Viegas was signed by Petitioner on August 13, 2010, and sent to the Department where it was filed on August 16, 2010, nearly seven weeks after the 21-day deadline specified in the letter for filing a request for administrative hearing. Petitioner does not assert that she was misled or lulled into inaction by anything said or done by the Department's representatives. Petitioner does not assert that the Department's notice was unclear or confusing with regard to when, whether, or how Petitioner needed to request an administrative hearing to contest the Department's proposed action. Instead, her sole contention is that her "diminished mental capacity"1/ constitutes an extraordinary circumstance that prevented her from timely filing her request for hearing. The greater weight of the credible evidence does not support a finding that during the six- or seven-month period in 2010, when Petitioner's depression worsened, her condition rendered her incapable of functioning. The facts are inconsistent with the suggestion of a debilitated state. Petitioner drove a car, sometimes by herself; collected the mail from the mailbox herself; walked her pet poodle; and went out for meals when she tired of peanut butter sandwiches. Though she did not, herself, clean the house or cook meals, she had the help of two daughters, one of whom lived in the house and had no other job besides helping Petitioner. Moreover, in May 2010, Petitioner was capable of submitting an appropriate written request for change of insurance coverage level and for refund of overpaid premiums; and on June 5, 2010, Petitioner was able to respond to receive the delivery of the certified letter on June 5, 2010, and to sign the certified receipt with a clear, steady signature. Based on the credible evidence, the undersigned is unable to find that Petitioner's condition rose to an extraordinary circumstance, such that she was "prevented" from timely filing a petition. "Prevented" suggests an external factor beyond one's control, something far beyond one's own lack of reasonable prudence. As Petitioner and her live-in daughter observed Petitioner's worsening condition, reasonable prudence would have mandated an adjustment in protocol. It defies credibility to suggest that Petitioner's condition worsened to the point that it was impossible for Petitioner to care for herself and tend to her business and that Ms. Viegas would have stood by unwilling to assume full responsibility for Petitioner, including dealing with day-to-day business affairs. It must be emphasized that no medical testimony and no medical records were offered to support the testimony of Petitioner and her daughter regarding Petitioner's condition during the critical time of June and July 2010. Not only are Petitioner and her daughter lay witnesses who lack the expertise to offer medical opinions, but these two witnesses share an interest in characterizing Petitioner's condition, in this proceeding, as extreme and extraordinary. Instead, the impression given by the inconsistencies noted above is that Petitioner's condition was neither extreme nor extraordinary, but, rather, was chronic and manageable or at least accepted as the norm for the household. If Petitioner's condition were as extreme and debilitating as suggested for purposes of arguing equitable tolling, it would have been reckless for Petitioner to be allowed to continue driving her car. If, in fact, Petitioner was unable to function or comprehend day-to-day occurrences, there would be no excuse, in the exercise of reasonable prudence, for Ms. Viegas, who was not otherwise employed and was living in the home for the expressed purpose of helping Petitioner, to not have assumed full responsibility for her mother's functioning and dealing with day-to-day business affairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Respondent, Department of Management Services, enter a final order dismissing the petition for administrative hearing filed by Petitioner, Mary Ann Steadman. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011.
The Issue The issue to be determined is whether the doctrine of equitable tolling should excuse the late filing of a Petition for Administrative Hearing filed with Respondent by Petitioner Florists Mutual Insurance Company.
Findings Of Fact Respondent, the Department, is the state agency charged with resolving disputes over reimbursement for costs of medical services provided to injured workers under workers? compensation law. Petitioner Florists was in a reimbursement dispute with Kendall. The Department issued a Determination that Florists should reimburse Kendall the sum of $100,894.54. Florists received notice of the Reimbursement Dispute Determination on April 8, 2013, via United States Postal Service certified mail. The Reimbursement Dispute Determination included a Notice of Rights advising Florists that a request for an administrative hearing on the Determination had to be received by the Department within 21 days of Florists? receipt of the Determination. It noted in bold print that failure to file a petition within that time period constituted waiver of the right to a hearing. Florists? Initial Petition was sent via certified mail from the Tallahassee office of Petitioner?s counsel located at 1701 Hermitage Boulevard, Suite 103, Tallahassee, Florida, on or about Thursday, April 25, 2013. The filing deadline was the following Monday. The Initial Petition was appropriately addressed to “Julie Jones, CP, FRP, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida.” The Initial Petition was received by the Department on Wednesday, May 1, 2013, at 10:11 a.m. The Department determined that the Initial Petition was untimely, as it was received on the twenty-third day after Florists received notice, making it two days late. Petitioner is a workers? compensation insurance carrier whose substantial interests are affected by Respondent?s Reimbursement Dispute Determination that it must reimburse health care provider Kendall $100,894.54. That determination will become final if Petitioner is determined to have waived its right to a hearing. The distance between the Tallahassee office of Petitioner?s counsel and the office of the Department is approximately four miles. From review of the United States Postal Service tracking information, it appears that after the Initial Petition was mailed, it was processed in Louisville, Kentucky, before it returned to Tallahassee, Florida, for delivery, indicating a journey of some 1,050 miles over the course of six days. Late delivery of the Petition by the United States Postal Service did not prevent Florists from asserting its rights.
Findings Of Fact DOT and its predecessors have been charged by statute with the responsibilities to construct, operate, and maintain the Florida Turnpike, which is known as the Sunshine State Parkway. The Parkway is financed through a system of tolls which DOT charges users, through concessions that DOT receives from service facilities that are located on the Parkway, and from interest that DOT receives on deposits of toll revenues. Tolls are the primary source of revenue. Proposed rules 14-61.01 and 14-61.03 would increase the tolls charged by DOT for all Parkway traffic. The Petitioner is a political subdivision of the State of Florida. The Parkway traverses the north-south length of Broward County. Petitioner is a major user of the Parkway. Petitioner has the responsibility to operate and maintain a system of roadways within its boundaries. Changes in traffic patterns on the Parkway affect traffic patterns on other roads within the County. The parties have stipulated that the Petitioner would be substantially affected by the proposed rules. The first section of the Parkway, between Miami and Ft. Pierce, was completed in 1956. The second section, between Ft. Pierce and Wildwood, was completed in 1963. The toll schedule, which sets the rates charged different classes of vehicles for different movements along the Parkway, has not been amended since it was originally adopted and implemented in connection with the opening of the various segments. The original toll schedule was determined based upon local costs of obtaining property and estimated maintenance costs. The present toll structure includes some sharp fluctuations in the rate per mile charged for different movements. The average rate for the entire Parkway is approximately 1.8 cents per mile. For some movements along the Parkway the rate is as high as 4 cents per mile, while for others the rate is 1.6 cents per mile. Different rates are charged for passenger cars, and for trucks. The rate differentials are based upon the number of axles. Thus a five axle heavy truck pays a rate that is 2.5 times the rate charged passenger cars. During 1977, DOT began to consider a revision of the toll structure. Several legislators had expressed a desire that the toll rates be made uniform for all movements on the Parkway. Furthermore, the amount by which revenues obtained from operation of the Parkway exceed the cost of bond payments and operation and maintenance of the Parkway had been decreasing. It appeared at one time that there would be a shortfall of revenues for the 1977 year. There was also a projected shortfall of revenues for the 1978 year. The shortfalls did not occur. In fact there was a slight excess of revenues in 1977, and new projections based upon experience during the first six months of the year indicate that the same will be true for 1978. Excess revenues are, however, considerably less than had been typical in past years. DOT has developed and proposed what it calls a "minimum capital program". The program is labeled "minimum" because it contemplates making expenditures only for items that are needed, and not for items that are merely desirable. Revenue needs have been estimated through the calendar year 1991. The minimum capital program includes payments that will need to be made on revenue bonds; and the cost of major resurfacings, periodic maintenance, updating communications and tolls equipment, safety improvements, rehabilitation or replacement of concessionaire facilities, improving traffic handling facilities and miscellaneous engineering expenses. In addition to its own engineers, DOT employs two engineering firms to assist it in operating and maintaining the Parkway. A traffic engineer is employed to review the financial status of the Parkway on an annual basis, and a general engineer is employed to review the physical condition of the Parkway. Neither the traffic engineer nor the general engineer have mandated the minimum capital program. This program was developed by DOT's own employees The traffic engineer's projections for revenues that will be obtained from operation of the Parkway through 1991 reveal that inadequate revenues would be raised to finance the minimum capital program. DOT thus employed its traffic engineer on a special project basis to propose a toll schedule that would raise sufficient revenues, and that would eliminate the large variations in rate per mile charged for different movements on the Parkway. The traffic engineer proposed several alternative toll schedules. DOT is seeking to adopt the most conservative schedule proposed by the traffic engineer, through proposed rules 14-61.01 and 14-61.03. The traffic engineer sought to propose a schedule so that tolls for all movements on the Parkway would represent a fixed cost for collection of the toll, plus a fee based on usage in terms of mileage. It was decided that tolls would not be reduced for any movements, and that each movement would have an increase of at least five cents. There would be no toll increases greater than one hundred percent, and the smallest toll for any movement would be at least twenty cents. The tolls for all movements would be in five cent increments, so that change would not need to be distributed in pennies. Overall the toll structure set out in the proposed rules represents approximately a twelve percent increase, with per-mile rates being made more uniform. The ratio of the tolls charged to different vehicles has remained almost constant. Heavy trucks with five axles will now pay tolls that are approximately 2.6 times that charged for passenger vehicles. This slight increase in ratio reflects nothing more than a desire to maintain tolls in five cent increments. It does not reflect any desire to change the increments charged for different types of vehicles. Petitioner asserts that the minimum capital program is overstated, and that considerably less money will be needed for resurfacing and for safety improvements. DOT estimates that $110,000,000 will be needed for resurfacing on the Parkway between 1978 and 1991. This estimate is based upon a projection that resurfacing will be required every eight years, and will cost approximately $85,000 per mile to accomplish. The eight-year cycle is a planning tool utilized by DOT. It reflects the average life of pavement on interstate highways. The Parkway's history reflects that repavings are required less than every eight years. Portions of the first section of the Parkway did not need any resurfacing after the initial work for eleven years. With few exceptions, no new resurfacings were required after the first one, which was completed in 1968, until this year. Thus the first resurfacing has lasted from ten to fourteen years. Perhaps as a result of variances in materials, the experience on the second section of the turnpike has not been as good, but it does appear that a resurfacing will last for more than eight years. Despite this favorable history, there is room for considerable speculation on the part of engineers as to how long fly resurfacing will last. Eight years, while conservative, represents a fair estimate in view of the uncertainty. It was estimated by a witness called by the Petitioner that a resurfacing can be accomplished for approximately $40,000 per mile rather than the $85,000 estimated by the Respondent. The witness who made this estimate has not been involved in any resurfacings of this magnitude since 1968. The major reason for his smaller estimate is that he would use considerably less asphalt than proposed by the Respondent. Here again, there is room for variance in the views of engineer. The amount proposed by the Respondent, while again on the liberal side, appears to be reasonable, and based upon current estimates of costs on actual projects, with inflation being considered. As to safety improvements, Petitioner asserts that the improvements proposed by DOT are not essential. The minimum capital program includes proposals to add guard rails, to increase the strength of some existing guard rails, to improve lighting on the Parkway, and to increase the length of several approach lanes. The economic justification for the proposed safety improvements could be a subject for debate, but it does appear that the improvements offered by DOT are reasonable, and do not constitute as high an expenditure for safety as would be ideal. Projected revenues under the present toll schedule would not be adequate to finance the minimum capital program. The total deficit would amount to either $40,000,000 or $73,000,000 depending upon the accounting method utilized. Under the proposed toll schedule an additional $91,700,000 would be raised over the amount that would be raised from the existing toll schedule according to the traffic engineer's projections. There would thus be at least a $20,000,000 estimated total excess of revenues under the proposed schedule. This $20,000,000 must be considered from the perspective that it represents a thirteen-year projection in a project which will have an aggregate budget of approximately $361,000,000. Heavy trucks cause more wear on a highway surface than do passenger automobiles. The amount of increased wear is even greater than would be reflected by weight differentials. Trucks wear out a road surface at a rate of as much as twenty five times greater than automobiles. DOT made no effort to have the differential in tolls charged to trucks and automobiles reflect the amount of wear caused by each type of vehicle beyond the amount the present rate structure reflects such a differential. Neither did the Respondent make any effort to determine the extent to which toll increases could cause trucks to abandon the Parkway and to utilize other highways. The differential that exists in the present toll schedule was accepted by DOT and used for the purpose of developing a new schedule without any inquiry into whether a different ratio might better serve to raise revenue and to maintain the Parkway. The evidence does not reveal any logical basis for setting a ratio based upon that number of axles on the vehicle, but nonetheless DOT made no inquiry into the appropriateness of that ratio. The Economic Impact Statement prepared in support of the proposed rules was developed in June, 1977. The Statement was completed prior to June 16, 1978, the date that the proposed rules were noticed in the Florida Administrative Weekly. The Economic Impact Statement was submitted into evidence at the hearing. It is organized along the lines of Section 120.54(2), Florida Statutes (1977), with numbered paragraphs in which the data required by the statute is putatively set out. Although there was testimony from a competent and qualified expert witness to the effect that the Economic Impact Statement does not meet professionally acceptable methodology, it has not been established that the Statement is other than adequate to meet the requirements of the statute. The Petitioner's expert testified primarily that the Statement does not include a recitation of the data upon which the conclusions set out in the Statement are based. The expert would have preferred that the proposed rule be quoted in the Statement, and that all figures utilized in the Statement be fully explained. The expert did not find any specific fault with she methodology of obtaining data, with the data itself, or with the conclusions.
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated September 17, 1998, and if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455 and 475, Florida Statutes (1997). The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475, Florida Statutes (1997). Section 475.02, Florida Statutes (1997). The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes (1997). Mr. Lista is, and was at all times material to this proceeding, a licensed real estate salesperson, having been issued Florida license number SL-0647732. Mr. Lista's license is currently on inactive status. Mr. Lista submitted to the Department an Application for Licensure as a Real Estate Salesperson dated January 14, 1997, and received by the Department on January 27, 1997. Question number 9 on the application requests that the applicant answer "Yes" or "No" to the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Mr. Lista answered "No" to question number 9 on the application for licensure. He signed his name below the Affidavit of Applicant, which provides as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division of Administrative Hearings or its representatives, by him/her in response to inquiries concerning his/her qualifications. Mr. Lista's signature was notarized, and he submitted the application to the Department in January 1997. The Department approved Mr. Lista's application and issued a Florida real estate salesperson license. The Department subsequently learned that, on December 10, 1985, Mr. Lista pleaded guilty to one misdemeanor charge of Disorderly Intoxication, one misdemeanor charge of Resisting an Officer Without Violence to His Person, and one misdemeanor charge of Assault. Adjudication was withheld by the court, and Mr. Lista was sentenced to probation for a period of six months. Mr. Lista was represented by an attorney in the criminal proceedings, who appeared in court and handled the matter for Mr. Lista. At the time of the final hearing, Mr. Lista recalled being arrested, going to the police station, and being released after about 30 to 45 minutes without having to post bond, and he recalled the details of the 1985 incident leading to his arrest. Mr. Lista also recalled receiving copies of the dispositions of the criminal charges against him. Mr. Lista testified that, at the time he was filling out the application for licensure, he did not recall the guilty pleas and the sentence of probation because the incident had happened 12 years previously. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Mr. Lista misrepresented his criminal history by answering question number 9 in the negative. At the very least, the evidence supports a finding that Mr. Lista acted carelessly in answering question number 9 in the negative; certainly, had he reflected for a few moments, he would have recalled the 1985 incident, as well as the guilty pleas and sentence of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Emilio Daniel Lista is guilty of violating Section 475.25(1)(m), Florida Statutes (1997); suspending his real estate salesperson license for a period of one year; and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2000.
The Issue The issue in this case is whether the defense of equitable tolling applies to excuse Respondent's untimely request for a disputed-fact administrative hearing on an Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing pursuant to section 20.43, Florida Statutes, and chapters 456 and 464, Florida Statutes. At all times material to the Complaint, Respondent was a licensed registered nurse (R.N.) within the state of Florida. On or about February 19, 2016, Respondent retained CLG to represent him in Petitioner's Case 2016-08658, the number assigned by Petitioner to an investigation that ultimately led to issuance of the Complaint. In late May 2018, Attorney Leikam assumed the role as the CLG attorney with primary responsibility for Respondent's case, and informed Petitioner. At that time, the status of the case was characterized as "pre- probable cause." Attorney Leikam represented then to Petitioner that she "will be representing this client in all matters pending before the Department." On November 9, 2018, CLG legal assistant Katherine Kalinowski testified that she closed CLG's file on Respondent's case. However, she did not follow CLG procedures, in that she did not ensure that a withdrawal letter was sent to Respondent before CLG closed its file. On July 1, 2019, Petitioner filed its Complaint against Respondent. Although Attorney Leikam was still counsel of record for Respondent for all matters pending before the Department, including Case 2016-08658, the Department sent the Complaint and Election of Rights form to Respondent directly. When Respondent received the Complaint package, he called CLG and was referred to Attorney Leikam. Attorney Leikam determined that, although CLG had attempted to close its file, since no withdrawal letter was sent to Respondent, "we are still on it." Attorney Leikam sent an email to counsel for Petitioner to complain of the improper attempt to serve Respondent with the Complaint, when she was still counsel of record for Respondent, as she had previously informed Petitioner. Petitioner acknowledged and rectified this mistake by serving the Complaint and Election of Rights form by certified mail to Attorney Leikam, which she received on July 19, 2019. The parties agree that this second attempt to serve the Complaint constitutes the proper service on Respondent. The last page of the Complaint—page 11—set forth the NOTICE OF RIGHTS in bold type, informing Respondent that a written request for an administrative hearing must be received by Petitioner within 21 days after receipt of the Complaint. There is no claim by Respondent in this case that the Notice of Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested. Respondent knew that there was a deadline to request an administrative hearing, but he did not know when the actual deadline was. He admitted he only "vaguely" reviewed the Complaint, and probably did not make it to the last page. (Tr. 126-27). Instead, he relied on Attorney Leikam to timely submit whatever was necessary to protect his rights.2 2 Upon determining that CLG had not effectively terminated its representation of Respondent, Attorney Leikam immediately notified Respondent that further retainer payments were required. As of July 22, 2019, Attorney Leikam noted as follows in CLG's internal File Notes: "Client never paid but now that we've been served [with the Complaint], I don't want to miss the deadline. I completed only the election of rights form. I am not sending the answer to the [Complaint] until the client pays." To meet the 21-day deadline, a completed Election of Rights or other written hearing request had to be received by Petitioner no later than Friday, August 9, 2019 (21 days after July 19, 2019). The 21-day window to request an administrative hearing was closed on and after Monday, August 12, 2019.3 Neither Respondent nor Attorney Leikam submitted a completed Election of Rights or other written request for an administrative hearing to Petitioner by any means—electronic mail, in-person delivery, U.S. mail, or facsimile—within 21 days after the Complaint and Election of Rights form were received by Attorney Leikam. On November 6, 2019—89 days after the deadline to request an administrative hearing—Petitioner's counsel sent an email to Attorney Leikam to serve Petitioner's Motion for Waiver, which was attached. The Motion for Waiver, filed with the Board of Nursing, sought a determination that Respondent waived his right to a disputed-fact administrative hearing by not timely filing an Election of Rights or other written request for a disputed-fact hearing. That same day, after receiving the Motion for Waiver, Attorney Leikam responded by email to Petitioner's counsel, submitting for the first time a completed Election of Rights form on Respondent's behalf to dispute the facts alleged in the Complaint. 3 The parties stipulated that the 21-day period to request an administrative hearing "expired" August 12, 2019. The stipulation is not entirely clear. The ambiguity was reconciled based on the parties' other stipulation that the Complaint was properly served on Attorney Leikam on July 19, 2019. As a simple application of the computation of time rule, 21 days after Friday, July 19, 2019, was Friday, August 9, 2019. Thus, August 9, 2019, was the last day to file the request for hearing; the 21-day time period was "expired" as of Monday, August 12, 2019. See Fla. Admin. Code R. 28-106.103. Petitioner's PRO interpreted the ambiguous stipulation differently, proposing a finding that the 21-day deadline to file a hearing request was on Monday, August 12, 2019. (Pet. PRO ¶ 5). Respondent's PRO adhered to the ambiguous stipulation, proposing a finding that the 21-day response time "expired on August 12, 2019." (Resp. PRO ¶ 8). This discrepancy is inconsequential, as the findings herein demonstrate, because no hearing request was filed by August 9, 2019, August 12, 2019, or on any date close to either of those dates (if "close" mattered). Attorney Leikam represented to Petitioner's counsel that she had completed the Election of Rights form on or about July 21, 2019, and that her then-legal assistant, Tawanna Hackley, had submitted the completed form by email to Petitioner on July 23, 2019. Petitioner ran email searches and reported to Attorney Leikam that no emails were received from Ms. Hackley or from anyone else at CLG submitting a completed Election of Rights or otherwise requesting an administrative hearing to dispute the Complaint against Respondent. On December 3, 2019, Attorney Leikam sent an email to Petitioner's counsel, transmitting an Answer to the Complaint for filing on Respondent's behalf.4 Attorney Leikam also sent an email attaching Respondent's response to the Motion for Waiver. The response invoked the doctrine of equitable tolling as a defense to the admitted untimely filing of the Election of Rights. The Motion for Waiver and response were presented to the Board of Nursing on December 5, 2019. As a result of Attorney Leikam's request that the Board defer review of the case pending a hearing on equitable tolling, the matter was referred to DOAH to hear the equitable tolling defense. The equitable tolling defense asserted by Respondent is predicated on the circumstances surrounding Attorney Leikam having entrusted the filing of the Election of Rights to her then-assistant, Tawanna Hackley, who failed to complete the assigned task. Tawanna Hackley was not a lawyer or a paralegal; her position at CLG was a "legal assistant," and she worked under the supervision of Attorney Leikam. Ms. Hackley began working at CLG on November 12, 2018. Just over eight months later, on July 24, 2019, she was fired for inadequate performance. 4 As noted above, Attorney Leikam had recorded in the File Notes that as of July 22, 2019, Respondent had not yet paid the requested retainer fee, and that until Respondent paid, she was only going to file the Election of Rights and not the Answer. No evidence was offered to establish when Respondent paid, but based on Attorney Leikam's July 22, 2019, File Notes entry, presumably Respondent did not pay until shortly before Attorney Leikam filed the Answer on December 3, 2019. Attorney Leikam testified candidly that during Ms. Hackley's short tenure at CLG, she had a lot of performance issues, described as follows: It was really—it was really everything from not completing tasks, not documenting tasks, or then doing tasks but having multiple repeated errors in the format or the spelling or the language. It was— it was really a constant issue one way or another. But to me, the biggest issue was that when I would confront these things with her, she just denied all responsibility. (Tr. 25-26). Ms. Hackley was primarily trained by another legal assistant, Katherine Kalinowski, who acknowledged that Ms. Hackley did not seem to grasp what she was taught. When asked how long it took Ms. Kalinowski to train Ms. Hackley, of the eight months she was employed, Ms. Kalinowski responded, "Eight months." (Tr. 108). Nonetheless, Ms. Kalinowski testified that after the first month or so, she stopped checking over Ms. Hackley's work, limiting her involvement to answering Ms. Hackley's questions. Attorney Leikam communicated in telephone calls with CLG's director of human resources, Kristin Teague, regarding the consistent performance problems she was having with Ms. Hackley. However, no specific steps to address these problems were documented in Ms. Hackley's personnel file until her last few weeks at CLG. In particular, her personnel file contains one "coaching" document, prepared by Ms. Teague from information given to her by Attorney Leikman to facilitate a performance-related meeting between Attorney Leikam and Ms. Hackley on July 8, 2019; and one formal corrective action in the form of a counseling warning, issued on July 12, 2019. The July 8, 2019, coaching document listed specific performance issues to be addressed in discussion with Ms. Hackley, all of which fell within the broad categories of performance issues to which Attorney Leikam testified at the hearing: not completing tasks assigned to her, not documenting tasks, and committing multiple repeated errors in the work she did complete. The coaching document ended with a list of specific behavior changes needed from Ms. Hackley, and item two on the list was: "Complete tasks given by attorneys and/or ask a question if she does not understand." The next step in CLG's performance review process if an employee does not meet the expectations communicated in a coaching discussion is formal corrective action in the form of a counseling warning. A corrective action counseling warning was issued to Ms. Hackley on July 12, 2019, only four days after the scheduled performance discussion. The corrective action document was signed by Ms. Teague on July 12, 2019, and by Ms. Hackley and Attorney Leikam on July 15, 2019. The document warned Ms. Hackley that her performance needed to improve because she was making too many mistakes of the type identified by Attorney Leikam in her testimony: not completing assignments given to her by her attorneys, not following the CLG procedures for documenting tasks, not scanning documents into the electronic files, and making a lot of spelling and formatting errors. A confidential version of the corrective action document contained a heading identifying the reason for the action as "Unsatisfactory Work Performance." (Jt. Ex. 1, Pet. Depo. Ex. 2, Bates page 0028). The corrective action defined a time period for improvement of six months from the date it was issued, during which Ms. Hackley was expected to have weekly meetings with Attorney Leikam to discuss her performance. Almost immediately after the corrective action counseling warning was signed by Ms. Hackley, though, Ms. Teague testified that she and Attorney Leikam made the decision that Ms. Hackley needed to be terminated. Together, they informed Ms. Hackley that she was fired on Wednesday, July 24, 2019, but the decision was made either on Monday, July 22, 2019, or Tuesday, July 23, 2019. Ms. Teague explained when and why the decision was made: "Earlier that week I think we had decided that we could no longer risk her continuing to work on our files." (Jt. Ex. 1 at 53). That was because of the errors Ms. Hackley kept making. The precursor to this joint decision appears to have occurred on Friday, July 19, 2019 (the day on which Attorney Leikam received the Complaint by certified mail from Petitioner). Attorney Leikam apparently spent her morning in several rounds of email exchanges with Ms. Hackley. In each of these rounds, Attorney Leikam pointed out errors in Ms. Hackley's work, to which Ms. Hackley responded by blaming someone or something else for the errors. Attorney Leikam then forwarded each round of these email exchanges to Ms. Teague at CLG's Michigan office, and the email strings were placed in Ms. Hackley's personnel file. Attorney Leikam testified that she completed Respondent's Election of Rights on July 22 or 23, 2019, and physically handed it to Ms. Hackley with verbal instructions to scan and email the Election of Rights to Petitioner.5 Attorney Leikam exercised questionable judgment by entrusting to Ms. Hackley the critical step of transmitting the Election of Rights to Petitioner without verifying for herself that the email was sent and received, when at the same time she and Ms. Teague had jointly concluded that Ms. Hackley had to be fired because they "could no longer risk her continuing to work on our files." But according to Attorney Leikam, it is standard CLG practice for legal assistants to transmit by email these time-critical documents to the opposing party for filing. That this is the standard practice is not so clear in the CLG policies and procedures manual, which seems to assign to attorneys the responsibility for all communications of any kind with opposing parties. Further, as to deadlines, the CLG manual is quite clear that "[w]hile legal assistants should remind attorneys daily of their upcoming deadlines/events, both parties are responsible for ensuring that deadlines and events are not missed." 5 Attorney Leikam told Petitioner in the early November 2019 email exchanges that she completed the Election of Rights form on July 21, 2019, and gave it to Ms. Hackley to submit to Petitioner, but that is unlikely, since July 21, 2019, was a Sunday. More likely, Attorney Leikam completed the Election of Rights form on Monday, July 22, 2019, or possibly Tuesday, July 23, 2019, and gave it to Ms. Hackley to scan and email to Petitioner. Attorney Leikam acknowledged that when CLG's legal assistants send emails to opposing parties regarding a case, CLG's standard practice also dictates that the legal assistant must copy the attorney handling the case on the email. Attorney Leikam did not receive a copy of an email sent by Ms. Hackley to Petitioner transmitting the Election of Rights for filing. Despite not getting a copy of an email from Ms. Hackley transmitting the Election of Rights to Petitioner, Attorney Leikam believed Ms. Hackley completed the assigned task by sending the completed Election of Rights form by email to counsel for Petitioner on July 23, 2019. Attorney Leikam believed that the filing was made on July 23, 2019, because an entry dated July 23, 2019, in the File Notes document maintained for Respondent's case stated: "Sent election of right to Dirlie McDonald @ DOH place in G:drive. TH." The File Notes document is a Microsoft Word document. File Notes documents are maintained for each case, with contact information for parties and counsel, and entries reporting on events and communications relevant to the case. The File Notes documents can be accessed by any CLG employee. In theory, and in accordance with CLG procedures, an entry's date should be the date the entry is actually made, but no date or time stamp is automatically generated to ensure accuracy. As such, an entry can be made either before or after the typed date. Likewise, in theory, and in accordance with CLG procedures, the initials at the end of a File Notes entry should identify the person who made the entry, but the initials are not automatically generated to identify who accessed the File Notes to record a particular entry. Attorney Leikam testified that she checked the File Notes for Respondent's case sometime on July 24, 2019, and saw the entry for July 23, 2019, by "TH" stating that the "election of right" was "sent" to "Dirlie McDonald @ DOH." Attorney Leikam later made the following entry in the File Notes: "7/24/19: Client left a message worried about payment and election of rights. I played phone tag and left him a message saying it was covered. Sent f/u [follow-up] email. LAL." According to Attorney Leikam, the sequence of events, as recorded in her File Notes entry, was that, first, Respondent called and left a message expressing concern about whether the election of rights had been filed. Then, after Attorney Leikam received the message, she investigated the status of the Election of Rights assignment by reviewing the File Notes and finding the July 23, 2019, entry by TH. Attorney Leikam drew the inference from the entry and the initials that Ms. Hackley had completed her assigned task of sending the Election of Rights by email to Petitioner on July 23, 2019 (even though the entry does not state how the Election of Rights was sent, and even though Attorney Leikam did not receive a copy of an email from Ms. Hackley to Petitioner). Then, Attorney Leikam "played phone tag" with Respondent, and ultimately left a message saying "it was covered." Attorney Leikam then drafted a "follow-up" email to Respondent and sent it to him. The follow-up email prepared by Attorney Leikam stated: "We submitted the Election of Rights form on 7/23/19. We received it on 7/19/19, so it is timely. This is because we were still counsel of record[, so] the Department should have sent the Administrative Complaint to our office. Thus, the Complaint you received [earlier] is not considered properly served." This email was sent to Respondent at 3:16 p.m., on July 24, 2019. Of necessity, then, all of the preceding steps in the sequence occurred sometime earlier on July 24, 2019, if not before July 24, 2019. Attorney Leikam offered no explanation as to why she did not just ask Ms. Hackley if she completed the assignment so Attorney Leikam could answer Respondent's inquiry. Ms. Hackley was still in the office on July 24, 2019, until nearly the time that the follow-up email was sent at 3:16 p.m. Attorney Leikam's review of the File Notes entry ostensibly made by Ms. Hackley on July 23, 2019, was inadequate to support the inference drawn by Attorney Leikam. Reasonable prudence dictated that she ask Ms. Hackley to confirm that she sent the Election of Rights by email, before assuring the client that "we" submitted the Election of Rights on July 23, 2019, and that it was timely filed. The File Notes entry itself did not identify how the Election of Rights was "sent," and Attorney Leikam was not copied on an email from Ms. Hackley to Petitioner transmitting the Election of Rights, as was the standard CLG practice.6 Meanwhile, Attorney Leikam also spent time on July 24, 2019, dealing with Ms. Hackley's termination. Attorney Leikam testified that she spoke with Ms. Teague during the morning of July 24, 2019, to confirm the plan to schedule a meeting with Ms. Hackley at 3:00 p.m., and that Ms. Teague would attend by telephone. Sometime between 12:00 p.m. and 1:00 p.m., Attorney Leikam used Microsoft Outlook to schedule the 3:00 p.m. meeting, sending "invitations" to Ms. Hackley and Ms. Teague.7 Ms. Hackley's receipt of an "invitation" to a meeting with Attorney Leikam and Ms. Teague was not well received, coming on the heels of the corrective action counseling warning Ms. Hackley had signed nine days earlier, and the multiple rounds of criticizing emails from Attorney Leikam five days earlier. According to Attorney Leikam, rather than accepting the invitation, Ms. Hackley "stormed" into her office and started yelling that they 6 Attorney Leikam attempted to justify the reasonableness of her inference by explaining Ms. Hackley did not always follow procedure by copying her on emails. Even if true, that would not support the reasonableness of inferring Ms. Hackley completed the email filing assignment from an entry that did not say the Election of Rights was sent by email. Moreover, Attorney Leikam's explanation as to why she was unconcerned by the fact that she did not receive a copy of an email was impeached by Respondent's own evidence. According to an audit of Ms. Hackley's emails, not done until November 2019, all outgoing emails from July 10, 2019, through July 24, 2019, from Ms. Hackley to Petitioner or another party outside of CLG were copied to Attorney Leikam and/or Ms. Bazzigaluppi. If this was a performance issue for Ms. Hackley previously, it apparently was not a problem in July 2019. 7 Ms. Teague had a somewhat different, but much less clear, recollection of the timing. She repeatedly said she was not sure of the various times to which she hesitantly testified. Ms. Leikam, in contrast, did not express the same hesitancy in her testimony. To the extent their testimony differed as to when certain steps occurred, Ms. Leikam's more certain recollection is generally credited. It would stand to reason that she would have a clearer recollection of the timing of events that occurred in her physical presence than Ms. Teague's admittedly uncertain recollection of the timing of events in which she participated remotely by telephone from Michigan. were going to fire her and she was not going to sit around and wait for a meeting. Ms. Hackley then left Attorney Leikam's office, and Attorney Leikam said she heard "a lot of slamming for a little while." (Tr. 57). Then Ms. Hackley returned and said she was going to wait for Ms. Teague. Attorney Leikam said after this exchange, she called Ms. Teague immediately, who made herself available for a meeting "within about an hour's time." (Tr. 57). Given Attorney Leikam's description of the events that started at between noon and 1:00 p.m., the meeting must have begun no earlier than 1:30 p.m. and possibly as late as 2:30 p.m. The termination meeting was relatively uneventful, as Ms. Hackley was already expecting to hear that she was fired, and she was. No reasons for dismissal were discussed. Ms. Teague asked Ms. Hackley to give her key to Attorney Leikam, and she did. Ms. Teague than asked Ms. Hackley to delete her CLG email account from her phone while Attorney Leikam observed her doing so, and she did. Inexplicably, Ms. Hackley was not instructed to leave, nor was she instructed to pack up her personal things while a witness observed her doing so. Attorney Leikam testified that she does not know whether Ms. Hackley left the building right away, but believes that she heard Ms. Hackley at her desk for almost an hour after she was fired. Ms. Hackley's desk was just outside of Attorney Leikam's office, but not within her line of sight. Ms. Kalinowski testified that her work station was approximately six feet away from Ms. Hackley's station. Ms. Kalinowski was out to lunch when the termination meeting started in Attorney Leikam's office, but returned before it ended. Ms. Kalinowski testified that when Ms. Hackley left the meeting, she was a little teary-eyed and gave Ms. Kalinowski a hug, telling her she had been fired. Ms. Kalinowski told her she was sorry. Ms. Kalinowski testified that Ms. Hackley went to her work station and was "doing something on the computer," though Ms. Kalinowski could not say if it was work or something else, as she could not see what was on the screen. Ms. Kalinowski said she gave Ms. Hackley "a few minutes," then asked what she was doing, and Ms. Hackley said she was "cleaning things up." (Tr. 110). Ms. Kalinowski told Ms. Hackley she did not think she needed to worry about that, so Ms. Hackley got her things and went outside to wait for her ride. Ms. Kalinowski testified that it was between 2:30 p.m. and 3:00 p.m. when Ms. Hackley left the building.8 Attorney Leikam confirmed that Ms. Hackley was terminated because of performance issues. Ms. Teague agreed, stating that the decision was made to fire Ms. Hackley because of all the errors she continued to make. As such, when Ms. Hackley applied for unemployment compensation, CLG did not contest it. To do so, CLG would have had to show that Ms. Hackley had engaged in gross misconduct, and there was no evidence of that. Despite Ms. Hackley's performance inadequacies recounted by Attorney Leikam, there was no immediate undertaking after Ms. Hackley's termination to audit the files on which she had been working to determine whether there were additional instances in which she failed to complete assigned tasks. That was negligent. Attorney Leikam's acceptance at face value of an internal file notation as sufficient proof that Ms. Hackley completed an assignment just given to her on July 22, 2019, was negligent. Even if Attorney Leikam was unwilling or unable to ask Ms. Hackley before she left the building on July 24, 2019, whether she completed the assignment, there was an easy and simple solution. Attorney Leikam could 8 Among other evidence relied on by Respondent, testimony regarding conversations with Ms. Hackley is hearsay. At the outset of the hearing, the parties were informed that to the extent their evidence constituted or contained hearsay, the hearsay evidence would not be relied on as the sole basis for a finding of fact, whether objected to or not, unless the hearsay would be admissible in a civil action in Florida, i.e., that it would fall within a hearsay exception under the Florida Evidence Code. See § 120.57(1)(c), Fla. Stat. (2019); and Fla. Admin. Code R. 28-106.213(3). The parties were instructed to identify on the record any hearsay exceptions they intended to rely on so that argument could be presented by both parties. Neither party raised a hearsay exception on which they were relying. Accordingly, the testimony regarding conversations with Ms. Hackley is recounted not for the truth of what was said, but rather, to portray an approximate timeline of the events on July 24, 2019. have, and should have, called or emailed counsel for Petitioner to ask whether Respondent's Election of Rights had been submitted. As of July 24, 2019, there were still 16 days remaining—more than two-thirds of the 21-day window—to timely file an Election of Rights. It would have been easy to verify whether the just-fired employee who constantly made errors during her short tenure at CLG had, or had not, made another error on this assignment. Reasonable prudence and due diligence required that Attorney Leikam do so, particularly since she and Ms. Teague, the human resources director, had concluded together earlier that week that the firm could not risk having Ms. Hackley continue to work on their files. Attorney Leikam did nothing to check on the status of Respondent's case until she received the Motion for Waiver on November 6, 2019. Then, with the clarity of belated hindsight, the forces were marshalled as they should have been in late July 2019. Ms. Hackley's emails were searched and audited in November 2019, something that should have been done in late July 2019. And, as would have been confirmed in late July 2019 had the audit been requested then, the resulting audit report was that no email was sent by Ms. Hackley to counsel for Petitioner transmitting Respondent's Election of Rights. Respondent, through counsel, contends that Ms. Hackley's actions and inaction constituted intentional sabotage and, as such, extraordinary circumstances beyond Respondent's control and beyond Attorney Leikam's control that could not have been discovered in the exercise of due diligence. The credible non-hearsay evidence, with reasonable inferences drawn therefrom, does not support a finding that Ms. Hackley engaged in intentional sabotage. Instead, that evidence only establishes that Ms. Hackley did not complete an assignment verbally conveyed to her shortly before she was fired. At most, the evidence supports a finding that she was negligent, as she apparently had been throughout her tenure at CLG. Respondent, through counsel, argues that the entry dated July 23, 2019, in the CLG internal File Notes document by "TH" must have been intentionally made by Ms. Hackley after she knew she was fired, out of anger for being fired, to sabotage Attorney Leikam. Of course, this same entry was considered by Attorney Leikam on July 24, 2019, to be solid evidence that Ms. Hackley, in fact, completed her assignment by emailing the Election of Rights to Petitioner on July 23, 2019. Just as the latter inference was not reasonable, as previously found, the opposite inference of intentional sabotage is not fair, reasonable, or supported by the credible evidence. To begin with, the evidence is inconclusive regarding the timeline. Although Attorney Leikam was fairly specific in recalling the timeline related to Ms. Hackley's termination, she testified only in generalities as to the sequence of events on July 24, 2019, with regard to her investigation to respond to Respondent's telephone message. If anything, the sequence of events suggests that Attorney Leikam discovered the File Notes entry dated July 23, 2019, before Ms. Hackley became aware between 12:00 p.m. and 1:00 p.m. on July 24, 2019, that she was likely going to be terminated. Even if the timing predicate had been established, Attorney Leikam candidly admitted that the only basis for inferring that Ms. Hackley had intentionally falsified the File Notes entry to sabotage her was the fact, discovered in early November, that the File Notes entry was false. Respondent argues that the only reasonable inference from the false entry is that Ms. Hackley intentionally falsified the records. But another equally reasonable, if not more reasonable, inference from the July 23, 2019, entry is that Ms. Hackley may have been trying to respond to the recent criticism of her failure to document events in File Notes, by making an entry before she actually completed the task. The completed Election of Rights had also been scanned and saved to the G:drive, something else that Ms. Hackley had been criticized for not doing. Ms. Hackley may well have intended to follow through by preparing an email to counsel for Petitioner to transmit the already-scanned, already-saved Election of Rights form, but may have gotten sidetracked after making the File Notes entry on July 23, 2019. Had Attorney Leikam asked Ms. Hackley on July 24, 2019, when she saw the July 23, 2019, File Notes entry, the matter may have been resolved. Instead, Ms. Hackley was fired and left the building mid-afternoon on July 24, 2019.9 Respondent, through counsel, also points to the short time that Ms. Hackley was seen at her computer after she was fired, when she was seen doing something for a few minutes before she packed up her things and left. The suggestion is that the only, or most reasonable, inference is that Ms. Hackley must have been making the July 23, 2019, false entry in File Notes out of anger for being fired. Alternatively, the argument is that Ms. Hackley made the false entry between learning of the meeting at which she was pretty sure she was going to be fired and the actual meeting. These arguments are speculative, unsupported by competent substantial evidence, and not proven to be more likely than not. Once again, the suggested inference is not the only possible or reasonable explanation. Another reasonable inference is that Ms. Hackley may have been spending the little time she had at her computer, after learning she would likely be fired, to delete personal emails and/or documents that she did not want to leave behind on her work station. In the absence of supporting evidence, therefore, Respondent's suggested inference is rejected. Before the Board of Nursing, in the response opposing Petitioner's Motion for Waiver filed December 3, 2019, Attorney Leikam represented that the inference that Ms. Hackley had intentionally falsified the July 23, 2019, entry would be supported by evidence showing that in more than 30 other instances at CLG, Ms. Hackley had falsely documented performing work when she had not. (Resp. Ex. 4, ¶ 16). No such evidence was offered at the 9 Neither Respondent's inference nor the alternative inference suggested here is supported by evidence sufficient for a finding of fact. The point here is that Respondent's suggested inference is not the only possible or reasonable explanation for the false entry. In the absence of supporting evidence in the record, the inference offered by Respondent is rejected. hearing. Instead, according to Ms. Teague, Attorney Leikam's suspicion that Ms. Hackley intentionally sabotaged CLG's internal file for Respondent's case was the only time in which there was a suspicion of that kind during her tenure at CLG. She confirmed that Attorney Leikam first expressed her suspicion that the File Notes entry was intentionally falsified when she discovered well after Ms. Hackley was fired that no Election of Rights was filed. That is consistent with Attorney Leikam's testimony: the fact that the entry was false was the basis for inferring that it was intentionally falsified. She admitted she has no proof that Ms. Hackley intentionally falsified or sabotaged CLG's internal records for Respondent's case. As a final argument to bolster the missing evidence of nefarious intent, Respondent, through counsel, asserted that an inference of intentional falsification is supported by other evidence from Ms. Hackley's prior job at the Department of Health. However, to make the desired argument, Respondent mischaracterized the evidence. A fair review of the evidence undermines Respondent's argument. Respondent's argument is based on an excerpt of Ms. Hackley's personnel file from the Department of Health in evidence (subject to the hearsay caveat given at the outset of the hearing). The excerpt includes personnel forms indicating that Ms. Hackley was dismissed on July 29, 2016, from a "regulatory specialist II" career service position. Respondent's PRO asserts that the personnel file excerpt shows that "Ms. Hackley had been previously fired from her employment with the Department for what appears to be falsification of internal documents; specifically timesheets[.]" (Resp. PRO ¶ 49). Respondent's PRO refers to documentation within the personnel file claimed to support "the contention that Ms. Hackley was falsifying her timesheets." (Resp. PRO ¶ 51). Contrary to these characterizations, the personnel file excerpt contains no evidence establishing the reason why Ms. Hackley was dismissed from employment as of July 29, 2016. The documents referred to in Respondent's PRO were what appears to be a single written reprimand memorandum, dated July 14, 2008, plus a few pages containing handwritten notes that appear to relate to timesheets in August 2008. The memorandum indicates that Ms. Hackley was issued a written reprimand on July 14, 2008, for two reasons: attendance, including excessive tardiness; and "errors on your timesheet." (Resp. Ex. 15, Bates page 424). The written reprimand does not state that Ms. Hackley intentionally falsified timesheets; it states that as of July 14, 2008, she was making errors on her timesheets. The last few pages of the personnel file excerpt cannot be characterized at all without a witness to explain what the handwritten notes represent. All that can be gleaned is that information was written down by someone apparently in reference to Ms. Hackley's timesheets during one week in August 2008. Whatever this information represents, it apparently did not result in any formal action such as a written reprimand, which presumably would have been included in the exhibit. Without a witness to explain these documents, they are plainly hearsay with no predicate to support a hearsay exception, and as such, cannot be the sole basis for a finding of fact.10 Importantly, Respondent's PRO fails to point out the eight-year gap in time between the timesheet errors for which Ms. Hackley was apparently reprimanded in July 2008, and her dismissal for unstated reasons in July 2016. The only fair inference is that any attendance and timesheet error problems Ms. Hackley had in 2008 were considered minor and were corrected. Presumably falsification of timesheets, had that occurred in 2008, would have been met with serious disciplinary action such that Ms. Hackley would not have rebounded and continued with no adverse personnel records for an eight-year employment span between 2008 and 2016. 10 The handwritten notes appear to only indicate that Ms. Hackley may have made more errors on her timesheets in August 2008. In an attempt to suggest something worse than mere errors, Respondent's PRO contains a glaring misquote, asserting that one note stated "8-11-08 Now the week 8-1/8-7 has codes but 0 hours! This was faked again today 8-11." (Resp. PRO at 14, ¶ 51) (emphasis added). The quoted note actually ends as follows: "This was faxed again today 8-11." (Resp. Ex. 15, Bates page 00427) (emphasis added). In sum, Respondent mischaracterized a minor disciplinary action in 2008, and compounded that misfire by ignoring the huge time gap between the action and Ms. Hackley's dismissal, to advance an unsupportable claim that the timesheet issue in 2008 was somehow the reason for dismissal in 2016. That effort failed. Ms. Hackley's Department of Health personnel file adds nothing to Respondent's attempt to infer nefarious intent or bolster the claim that Ms. Hackley intentionally falsified CLG's internal records. Regardless of the nature, timing, or intent of Ms. Hackley's File Notes entry, the evidence clearly establishes that there was ample time and opportunity, with the exercise of even a modicum of due diligence, for Attorney Leikem to have discovered before the expiration of the filing period that the Election of Rights had not been filed. The circumstances did not prevent her from timely filing the Election of Rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing issue a final order dismissing Respondent's Election of Rights request for a disputed-fact administrative hearing as untimely and not excused under the equitable tolling doctrine. DONE AND ENTERED this 20th day of July, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2020. COPIES FURNISHED: Dirlie Anna McDonald, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Sara A. Bazzigaluppi, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Philip Aaron Crawford, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 (eServed) Kathryn Whitson, MSN, RN Board of Nursing Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Louise St. Laurent, General Counsel Department of Health Bin C65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether the Petitioners are entitled to an award of attorneys' fees and costs pursuant to Sections 120.569(2)(e) and 120.595(1), Florida Statutes, and, if so, in what amounts.
Findings Of Fact On October 3, 2001, AHCA served three Administrative Complaints on HHCI, apparently intending to revoke HHCI's licenses to operate nursing homes on the basis of a retroactive application of Section 400.121(3)(d), Florida Statutes (2001). The statute states in pertinent part: (3) The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: * * * (d) Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period. HHCI filed petitions challenging AHCA's allegations in the Administrative Complaints. On October 12, 2001, HHCI filed a challenge to the non- rule policy of retroactive application (DOAH Case No. 01-3935RU) and a hearing was scheduled for October 23, 2001. The Petitions in the Administrative Complaint cases were forwarded by AHCA to DOAH on October 19, 2001, and were consolidated under DOAH Case No. 01-4124. The Final Order in Case No. 01-3935 RU, declaring AHCA's policy of retroactive application invalid, was issued on October 31, 2001. HHCI filed a Motion for Award of Attorney's fees in DOAH Case No. 01-4124 on November 2, 2001. That motion forms the basis for the instant case. At the time the Administrative Complaints were filed, the three HHCI facilities held standard licenses and were apparently operating in compliance with applicable law, with no unresolved survey violations pending. The day after the Administrative Complaints were served, AHCA issued a press release and scheduled a telephonic "media call-in" to reply to questions from interested press representatives. The result of the media attention was to cause great concern to both HHCI and the residents of their facilities as to the proposed closure of the facilities. AHCA distributed a letter to residents indicating that unless HHCI challenged the action, the facility would be closed in approximately 60 days. The AHCA letter advised residents that if HHCI challenged the proposed action, the proposed action "may be delayed." The AHCA letter did not indicate that any resolution of the dispute other than facility closure was possible. The result of the attention and statements by AHCA's representative was to cause great concern among residents and their families as to what living arrangements would be available for residents of the facilities. AHCA also placed monitors in each facility to discuss the pending action with residents and their families, as well as to observe the facility operations. There is no evidence that the placement of monitors in the facilities offered any level of comfort to residents or families. The monitors also apparently began citing the facilities for alleged additional violations of various regulations. In response, HHCI officials immediately sought legal counsel to address the situation. Counsel at the Washington, D.C., law firm, Proskauer Rose, became involved in representing HHCI. HHCI also retained Counsel in the Tallahassee office of the Broad and Cassel law firm, with whom it had no prior relationship. HHCI directed its legal team to review all possible options to resolving the matter expeditiously. Counsel considered both federal and state court action and filed a request for injunction in state court. HHCI also attempted to resolve the matter informally. On October 8, 2001, HHCI obtained an opinion from the Joint Administrative Procedures Committee (JAPC), a standing committee of the Florida Legislature, which concluded that "a strong legal argument" could be made that the retroactive application of the statute was improper. There is no evidence that AHCA considered the JAPC opinion. In any event, because informal attempts to resolve the matter were unsuccessful, HHCI legal counsel began an intensive effort to defend the company against the AHCA action. The Final Order in Case No. 01-3935RU held that there was an absence of legal authority to apply the new law retroactively. There was no appeal of the Final Order. After the Final Order was issued, AHCA abandoned the Administrative Complaints that sought to revoke HHCI's licenses and close the facilities. In this proceeding, HHCI seeks fees it incurred for the Broad and Cassel and the Proskauer Rose law firms and for presentation of the testimony of Al Clark at the fee hearing. HHCI presented nine invoices from Broad and Cassel that were admitted as HHCI Exhibit 1. The invoices submitted in this case do not duplicate time that was invoiced as part of the rule challenge-related fee case. Invoice #469914 dated November 1, 2001, is for a total of $23,835.87, including fees of $23,565 and costs of $270.87. The majority of the work in these cases was performed in October. The invoice indicates time spent considering several theories of defense to the complaints. Invoice #474211 dated December 1, 2001, is for a total of $2,282.02, including fees of $1,981.50 and costs of $300.52. Invoice #479185 dated January 2, 2002, is for a total of $257.59, including fees of $245 and costs of $12.59. Invoice #491866 dated February 9, 2002, is for a total of $5,463.05, including fees of $5,116.50 and costs of $346.55. Invoice #496833 dated April 3, 2002, is for a total of $161.74, including fees of $147 and costs of $14.74. Invoice #505207 dated June 7, 2002, is for a total of $738.68, including fees of $735 and costs of $3.68. Invoice #507485 dated July 2, 2002, is for a total of $296.17, including fees of $294 and costs of $2.17. Invoice #515997 dated October 2, 2002, is for a total of $1,625.93, including fees of $1586 and costs of $39.93. Invoice #516952 dated October 16, 2002, is for a total of $2,903.35, including fees of $2878 and costs of $25.35. HHCI presented the testimony of Al Clark, who was accepted as an expert on the issue of attorney fees. Mr. Clark testified as to the reasonableness of the fees and costs charged to HHCI by the Broad and Cassel law firm. Mr. Clark's testimony was not contradicted and is credited. The time and labor expended by employees of the Broad and Cassel law firm were reasonable in light of the legal issues presented by the administrative actions proposed by AHCA. The presumed goal of AHCA's action was to revoke the licensure of HHCI's three nursing homes. Broad and Cassel provided the substantial skill and expertise required to supply the necessary legal services. Broad and Cassel billed HHCI at an hourly rate. The hourly rates charged by Broad and Cassel personnel are reasonable. The rates ranged from $245 per hour for lead counsel to $90 per hour for support counsel. There was no prior business relationship between Broad and Cassel and HHCI. Broad and Cassel counsel has significant experience and skill in health care law and provided their services efficiently throughout the dispute. Because the proposed sanction was severe, and because the agency publicized its legal action, HHCI required an immediate legal response resulting in an intense initial amount of work by Broad and Cassel. Broad and Cassel personnel represented HHCI legal interests throughout the administrative proceedings and prevailed in defending against the proposed administrative action. Subsequent to the hearing, HHCI submitted Mr. Clark's invoice for $1,012.50. Mr. Clark's invoice reflects a reasonable effort expended in addressing the costs and fees at issue in this case. At the hearing, Mr. Clark further testified that an amount up to $10,000 would be possible for the resolution of this fee case. At this time, none of this expense has been incurred and is not properly awarded. Based on the foregoing, HHCI has satisfied the factors set forth in Florida Bar Rule 4-1.5(b) related to awards of fees and costs in this case, and is entitled to an award of fees and costs for the Broad and Cassel billing and for Al Clark's invoice. Mr. Clark was not asked for, and did not offer, an opinion about the reasonableness of the Proskauer Rose fees. There is no credible evidence supporting an award of fees for work performed by the Proskauer Rose firm. Based on the testimony presented during the hearing, the evidence fails to establish that the charges by the Proskauer Rose firm as set forth on the exhibit are reasonable. Billing records admitted into evidence as HHCI Exhibit 3 contain references to regulatory matters not directly at issue in the proceedings giving rise to this request for fees. Such additional matters include nursing home surveys performed in October 2001, preparations for informal dispute resolution (IDR) meeting related to survey issues, and regulatory matters occurring in other states. The IDR preparations, although apparently prompted by alleged problems identified by the monitors, were not at issue in the Administrative Complaints that form the basis for this fee request. Although HHCI asserts that an Administrative Law Judge, hearing the Administrative Complaints seeking license revocation, could have considered the alleged problems, such allegations would have required amendment of the pending Administrative Complaints. More likely, the allegations would have been the subject of new Administrative Complaints that would have been litigated separately, and, as such, costs related to IDR preparation are not properly awarded in the instant case. Further, the Proskauer Rose invoices indicate that hours billed on one invoice in "File #84028.0014" for October 12 (description beginning with "review faxed 256") and October 22 (description beginning with "Meeting with S. Davis and C. Schessler re preparation for IDR") were also billed on another invoice in "File #84028.0015." Duplicate billings would not support an award of attorney fees. AHCA'S MOTION FOR SUMMARY JUDGMENT On April 9, 2002, HHCI, a foreign limited partnership operating in the State of Florida, canceled the registration of HHCI Limited Partnership with the Florida Department of State. HHCI Limited Partnership continues to operate in other states and is registered in Massachusetts.
