STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN MILLER, )

)

Petitioner, )

)

vs. ) CASE NO: 87-1605F

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

THIS CAUSE came on for consideration upon those pleadings and documents recognized by the August 21, 1987 Order herein and upon Respondent's attorney's letter filed August 27, 1987 and Petitioners attorney's letter and accompanying affidavits filed August 31, 1987. By these submittals, the parties have each waived an evidentiary hearing and have made various stipulations and assertions which have been incorporated as necessary and appropriate in this Final Order. However, none of the parties' submittals constitute formal proposed findings of fact as contemplated by Chapters 22I-6 and 28-5, Florida Administrative Code, and accordingly no specific rulings thereon have been made pursuant to Section 120.59(2), Florida Statutes.

APPEARANCES

For Petitioner: Elizabeth Ann Goodale, Esquire

123O Indian Rocks Road Largo, Florida 33544

For Respondent: Floy Mikell, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700 FINDINGS OF FACT

1. Petitioner asserts entitlement pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code, to $6,975.00 in attorney's fees and $767.50 in costs incurred as the prevailing party in Miller

   v. Department of Health and Rehabilitative Services, DOAH Case NO. 86-0230. (Recommended Order entered February 16, 1987, Final Order adopting in toto Recommended Order entered March 16, 1987). Petitioner has submitted clear and convincing evidence of the reasonableness of the amounts claimed in each category.

   
   

2. Petitioner is not a partnership nor a corporation. She employs one person and her net worth is less than two million dollars.

3. Petitioner surrendered her Department of Health and Rehabilitative Services (HRS) Group Home for Developmental Services (DS) license on April 1, 1984, in the wake of an investigation surrounding the death of a child who had been placed in her care. Petitioner filed an application with HRS on September 3, 1985, for a Children, Youth, and Families (CYF) Special Home foster care license as provided for in Section 409.175, Florida Statutes, and 10M-6.05, Florida Administrative Code. A CYF Special Home license does not, in practice, address the same type of client as does the DS license. Petitioner's application for an initial CYF license was received in the HRS Licensure Office on September 11, 1985. A "staffing" was held October 10, 1985, and Petitioner's application for the CYF license was ultimately rejected on the basis of HRS' prior experience with Petitioner while she held her DS license. Thereafter, HRS did not pursue all the remaining investigations, interviews, and inspections required by statute and rule so as to determine Petitioner's eligibility for the CYF license. Without further investigation or other review, Petitioner's application was preliminarily denied on October 21, 1985, and she was issued a formal denial on November 26, 1985. This denial constituted a recognizable event for which a clear point of entry must be provided by the denying agency. HRS notified Petitioner pursuant to law, and Petitioner timely petitioned for formal administrative hearing. The case was assigned DOAH Case NO. 86- 0230, and eventually resulted in the granting of the CYF license for which Petitioner had applied.

   
   

4. Petitioner provided day care services for non-agency children throughout her DS licensure and for the time intervening between relinquishment of her DS license and the granting of the CYF license.

   
   

5. Despite other concerns expressed in the denial letter, HRS witness Mr. Siebert testified that Petitioner's application was denied solely upon authority and application of the criteria contained in Section 409.175, Florida Statutes, Rule 1OM-6.05(1)(c), (e), and (j), and Rule 1OM-6.05(2)(g) , (i), and (n), Florida Administrative Code. At formal hearing, HRS witnesses expressed no concerns with any other licensure standards provided by rule or statute. These criteria were applied by HRS to nine complaints of neglect or abuse, three of which HRS alleged at hearing were "indicated." If these "indicated" complaints had been contained in the HRS abuse registry and if they had been "substantiated'," "verified," or "established," they would have been grounds to deny the CYF license application. (The terms, "substantiated", "verified", and "established" are used interchangeably in various portions of the applicable statute and rules.) However, there had never been a judicial determination with regard to any of the complaints documented against Petitioner's DS license. Moreover, it is unclear whether the complaints listed as "indicated" in local HRS records were ever transmitted by local HRS employees to the central HRS abuse registry.

   
   

6. As a new applicant, Petitioner bore the initial burden of proof to establish that she met the applicable statutory and rule requirements for CYF licensure, and at formal hearing, she established that as of the date of her application, she met all requirements except those inspections and interviews HRS unilaterally had refused to pursue. Thereafter, the burden of proof to substantiate the indicated reports shifted to HRS since HRS sought to use the indicated reports for purposes of Screening/denying a license applicant, Anderson v. Department of Health and Rehabilitative Services, 485 So.2d 849 (Fla. 1st DCA 1986). Respondent HRS failed at formal hearing to substantiate, verify or establish that Petitioner was guilty of abuse or neglect for the three incidents alleged to be "indicated." Indeed, it turned out that one of the

   three allegedly "indicated" reports had resulted in even the local records being classified by the original HRS intake counselor as "no disposition" and "closed as unfounded".

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties and subject matter to this cause.

   
   

8. Section 57.111(14)(c), Florida Statutes, provides:

   
   

   Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the state agency were substantially justified or special circumstances exist which would make the award unjust.

   
   

9. No other provision of law which would preclude the award sought has been shown. The definition set out at Section 57.111(3)(b)3. for "initiated by a state agency" has been met. Petitioner has clearly prevailed and the nature of the proceeding qualifies. The only issues remaining to qualify are:

   
   

   1. Does Petitioner qualify as a small business party?

   2. Were the actions of DHRS substantially justified or do circumstances exist which would make the award unjust?

      
      

      1. Does Petitioner qualify as a small business party?

         
         

10. Since Petitioner is clearly neither a partnership or a corporation, she must meet the definition set forth in Section 57.111(3)(d)1., as follows:

    
    

    A sole proprietor or an unincorporated business, including a professional practice whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million.

    
    

    At all times, Petitioner's situation met the situs, size and net worth requirements. Therefore, that which must be determined with regard to this definition is what is meant by "sole proprietor . . . including a professional practice."

    
    

11. HRS submits that operation of a foster home or, since Petitioner was totally unlicensed at the time this cause was initiated, the intent of operating a foster home is not a "business," and that since day care of non-agency children is not the same thing as CYF foster care of agency children, and since such respective types of care may prove mutually exclusive under either the DS or CYF license, Petitioner cannot meet the foregoing definition of a "small

    business party." HRS cites Dollar, Par. 71, 177, P-H Memo TC (1971). That federal tax court case is not controlling.

    
    

12. It is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a review of the whole law in para materia, the Court will determine legislative intent. State v. Gale Distributors, 349 So.2d 150 (Fla. 1977).

    
    

13. In statutory construction, legislative intent is determined primarily from the language of the statute and the Legislature is assumed to know the meaning of words and to have expressed its intent by using them in the enactment. SRG Corporation v. Department of Revenue, 365 So.2d 687 (Fla. 1978); Thayer v. State, 335 So.2d 815 (Fla. 1976).

    
    

14. The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Product Safety Commission v. GTE Sylvania, 1447 U.S. 102, 100 S.Ct. 2051, 614 L.Ed.2d 760 (U.S. 1980).

    
    

15. In Gentele v. Department of Professional Regulation, 9 FALR 310, 323 (DOAH, June 20, 1986), Dr. Gentele's practice as an optometrist was conducted as a professional corporation. Following a successful defense to charges brought by the State to discipline his license, Dr. Gentele brought proceedings to recover attorney's fees and costs. In rejecting the State's contention that Dr. Gentele was not a "small business party," the Hearing Officer stated:

    
    

    This contention is rejected since construc- tion leading to a result obviously not intended by the Legislature should be avoided. City of St. Petersburg v. Siebold.

    
    

    This holding was not disturbed nor addressed in Gentele v. Department of Professional Regulation, 12 FLW 1673 (Fla. 1st DCA July 10, 1987), affirming the case upon another issue.

    
    

16. It is clearly the legislative intent, from the language used in Section 57.111, that a sole proprietor, with a net worth not exceeding $2 million, either incorporated or not, offering his services to the general public would qualify as a "small business party" A disciplinary proceedings against his license were instituted by the State. See also William L. McCallister v. Department of State, Division of Licensing, DOAH Case NO. 87-0724F (H.O.

    Ayers' Final Order entered June 15, 1987); William P. Pearson, Jr. v. Department of Professional Regulation, Construction Industry Licensing Board, DOAH Case No. 86-1916F (H.O. Davis' Final Order entered February 3, 1987).

    
    

17. But what if one seeks an initial license to care for agency-assigned children? Looking to Section 57.111(2), we find:

    
    

    The Legislature finds that certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceedings.

    Because of the greater resources of the

    state, the standard for an award of attorney's fees and costs against the state should be different from the standard for an award against a private litigant. The purpose of this section is to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in certain situations an award of attorney's fees and costs against the state. (Emphasis supplied)

    
    

18. Also persuasive is the language utilized by the Legislature in Section 57.111(3)(b)3, defining "initiated by a state agency" as follows:

    
    

    (b) The term "initiated by a state agency" means that the state agency:

    * * *

    3. Was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency.

    
    

    The statute thereby provides a "window," for those sole proprietors, such as Petitioner whose license applications have been denied. Concomitantly, they are likewise entitled to attorney's fees and costs where all other criteria are met.

    
    

    1. Were the actions of HRS substantially justified?

    
    

19. Although the investigative and staffing phases of the processing of Petitioner's CYF license application were rife with hearsay, innuendo and unprofessionalism, Respondent denied Petitioner's license at least in part, on the basis of three indicated reports of neglect and abuse. Thee Department of Health and Rehabilitative Services may disqualify a person from child care on the basis of indicated reports which have not been substantiated. See: Anderson v. Department of Health and Rehabilitative Services, supra, at page 854:

In instances during the screening process where the indicated report, which has not yet been substantiated by judicial determination, is found in the child abuse registry, HRS may nonetheless disqualify such person on the basis of that report by giving appropriate notice of rejection of the application on that ground . Should the applicant or employee contest the accuracy of the indicated report and request an adminis- trative hearing, as authorized by the statute, HRS would bear the burden of proving the facts showing abuse which are the subject of the indicated report. (Emphasis supplied)

The local records classified two of the three reports as "indicated." The evidence was unclear whether the statewide abuse registry reflected the same classification. In either case, the critical point under the Anderson decision is that the substance of the report, the report's classification, or the

lawfulness of the method of maintaining the report may be determined in an administrative proceeding, but that initial disqualification for licensure or employment on the basis of the existence of such reports is substantially justified by law.

Having so determined, it is not necessary to explore whether or not special circumstances exist so as to deny the Petition.

ORDERED THAT Petitioner's claim for attorney's fees and costs be DENIED. DONE and ORDERED this 8th day of October, 1987, in Tallahassee, Leon

County, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1987.

COPIES FURNISHED:

Sam Power, Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Elizabeth Ann Goodale, Esquire 14230 Indian Rocks Road

Largo, Florida 33544

Floy Mikell, Esquire

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 87-001605F

Orders for Case No: 87-001605F