STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNARD M. TULLY, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 87-2265F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration upon the formal record of this cause: Tully's Motion to Tax Attorney's Fees and Costs; Department of Professional Regulation's Response To and Motion to Dismiss, Motion to Tax Attorney's Fees and Costs; Order Amending Style; and Order to Show Cause; and Tully's Response to Order to Show Cause.

APPEARANCES

For Petitioner: John R. Sutton, Esquire

77721 Southwest 62nd Avenue, First Floor South Miami, Florida 33143

For Respondent: Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

FINDINGS OF FACT

1. Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F.

   
   

2. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175.

   
   

3. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred.

4. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal.

   
   

5. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims.

   
   

6. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code.

   
   

7. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 57.111, Florida Statutes, provides in pertinent part as follows:

   
   

   57.111 Civil actions and administrative proceedings initiated by state agencies; attorneys' fees and costs.--

   1. This section may be cited as the "Florida Equal Access to Justice Act."

   2. 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.

   3. As used in this section:

   1. The term "attorney's fees and costs" means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.

   2. The term "initiated by a state agency" means that the state agency:

      1. Filed the first pleading in any state or federal court in this state;

      2. Filed a request for an administrative hearing pursuant to chapter 120; or

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

   3. A small business party is a "prevailing small business party" when:

      1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;

      2. A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or

   4. The term "small business party" means:

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

      2. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees

      or a net worth of not more that $2 million.

   5. A proceeding is "substantially justified" if it had a reasonable basis in law and fact

   at the time it was initiated by a state agency. (4)(a) 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 of administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

   1. 1. To apply for an award under this section, the attorney for the prevailing small business party must submit an itemized affidavit to the court which first conducted the adversarial proceeding in the underlying action or to the Division of Administrative Hearings which shall assign a hearing officer in the case of a proceeding pursuant to chapter 120, which affidavit shall reveal

      the nature and extent of the services rendered by the attorney as well as the costs incurred in preparations, motions, hearings, and appeals in the proceeding.

      2. The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.

   2. The state agency may oppose the application for the award of attorney's fees and costs by affidavit. . . .

   [Emphasis supplied.]

   
   

9. Rule 22I-6.035, Florida Administrative Code, provides in pertinent part:

   
   

   1. Any small business party asserting entitlement to attorney's fees and costs under the Florida Equal Access to Justice Act shall file an affidavit with the Division of Administrative Hearings within sixty (60) days after becoming a prevailing small business party within the meaning of the Act. The affidavit shall itemize every cost and fee for which reimbursement is claimed.

   2. A petition shall accompany the affidavit which shall state whether the affiant requests an evidentiary hearing and shall:

      1. Set forth the style and case number of the administrative proceeding to which the affidavit relates;

      2. State whether the state agency:

         1. sought a voluntary dismissal.

         2. entered into a settlement favorable to the affiant; or

         3. entered a final order sustaining the affiant's position, and, if so, specify whether initially or on remand;

      3. State the amount of attorney's fees and costs sought;

      4. State where the affiant's domicile and principal office are, how many employees the small business party has, whether the affiant is a sole proprietor or an unincorporated business, and, if so, whether the affiant's net worth exceeds $2000,000; whether the small business party is a partnership or corporation, including a professional practice, and, if so, whether the small business party's net worth exceeds

         $2,000,000;

      5. State whether the agency's actions were substantially unjustified and whether circumstances exist that would make the award unjust;

      6. State whether the state agency was a nominal party only; and

      7. List all documents attached to the petition.

   3. Attached to the petition shall be copies of all documents on which the claim that the small business party prevailed is predicated, including, where applicable:

      1. Any pleading reflecting a state agency's request for voluntary dismissal;

      2. Any settlement agreement to which the affiant and the state agency are parties;

      3. Any court order, mandate or opinion in any judicial proceeding, appellate or trial, arising out of the administrative proceeding to which the affidavit relates; and, in addition,

         (e) Any court order on costs or attorney's fees entered in any proceeding arising out of the administrative proceeding to which the affidavit relates.

         * * *

         (6) In case of a timely request, the Hearing Officer will schedule an evidentiary hearing on reasonable notice. The evidentiary hearing will take place in Tallahassee, unless the Hearing Officer orders otherwise. Unless the affiant or the state agency timely

         requests an evidentiary hearing, the Hearing Officer will decide for or against the award and the amount, if any, on the basis of the pleadings and supporting documents.

         
         

10. The failure of Tully to file his original Fees and Costs Petition within 60 days of March 10, 1987, is clearly jurisdictional within the express terms of the statute as to his claim for attorney's fees. Tully's Response to Order to Show Cause acknowledges the appropriateness of this determination.

    
    

11. The statute and rule contemplate an itemized affidavit as the initiating pleading in a fees and costs case, to be accompanied by a Petition of some specificity. Tully has attempted to cure the absence in (or with) his original Fees and Costs Petition of an itemized affidavit of attorneys' fees and costs by Inserting into his Response to Order to Show Cause a verified itemization of costs incurred. The Petition was not amended prior to the Department of Professional Regulation's Motion to Dismiss. Leave to Amend the Petition was not granted by the Order to Show Cause and even if Tully's Response thereto could be considered sufficient to cure the itemization and verification defects of his original Petition, which it is not, the Response still does not cure all the other noted defects of the original Petition with regard to the express terms of the statute and rule setting forth what must be alleged. Whether or not Tully's failure to claim costs within 60 days is jurisdictional is therefore moot and this cause must be dismissed upon the failure alone.

    
    

12. However, with regard to Petitioner's timeliness argument, it should be noted that accepted rules of statutory construction support the concept that the drafters of such specific legislation clearly intended that failure to claim costs within 60 days is as fatal to the untimely Petition as is the failure to claim attorneys' fees within 60 days. The legislative intent, affirmatively expressed without equivocation within the four corners of the statute itself, is to provide for claims for attorney's fees and claims for costs and, at the same time, in conservation of the public purse, to set limitations upon each. See Section 57.111(2), Florida Statutes. This internal statutory intent affirmatively expressed by the drafters is of foremost and greatest weight in interpreting this statute or any other. Its existence should obviate the need for further quest in search of legislative intent, since the goal of all statutory construction is to ascertain the purpose of the legislation and the evils it is designed to guard against, and to effect the evident legislative intent. Section 49 Fla. Jur. 2d Section 114, Englewood Water District v. Tate,

    334 So.2d 626 (Fla. 1st DCA 1976); Payne v. Payne 89 So. 538 (Fla. 1921); and Curry v. Lehman, 47 So.2d 18 (Fla. 1908).

    
    

13. However, the foregoing express intent is confirmed both by internal statutory arrangement and by reading all parts of Section 57.111, Florida Statutes, in pari materia. These approaches to statutory construction are also to be given great weight even if the resultant interpretation is not consistent with the strict letter of the statute. 49 Fla. Jur. 2d Sections 115 and 175; State v. Webb, 398 So.2d 820 (Fla. 1981); Englewood Water District v. State, supra; Lanier v. Bronson et al., 215 So.2d 776 (Fla. 4th DCA 1968); Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla. 1962); Payne v. Payne, supra; and Curry v. Lehman, supra. There is no suggestion within Section 57.111, Florida Statutes, that one type of claim is to be treated differently from the other. Read in para materia, it is completely clear that the drafters of Section 57.111 meant to treat attorney's fees and costs in every way the same

    throughout all subsections. To apply any other construction would subvert the statute's express and implied purposes.

    
    

14. If, after applying such construction techniques, any ambiguity remained as to the meaning of the statute, Rule 22I-6.035(1), Florida Administrative Code, clearly utilizes the conjunctive phrase, "attorney's fees and costs" to clarify that the 60 days' jurisdictional filing requirement applies both to claims for attorney's fees and to claims for costs.

    
    

15. Moreover, it is axiomatic that any application for costs must be made within a reasonable time after a party becomes entitled thereto. In the circumstances of this type of fee and cost dispute, the Legislature has presumed that 60 days is a reasonable timeframe for applications for an award of attorneys' fees. Therefore, it may be concluded that the same timeframe would be reasonable for filing applications for an award of

It is therefore ORDERED: The Motion to Dismiss is granted; the Petition is dismissed and the Department of Professional Regulation shall go forth without day.

DONE and ORDERED this 20th day of August, 1987, at Tallahassee, 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 20th day of August, 1987.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

John R. Sutton, Esquire 77721 S.W. 62nd Avenue First Floor

South Miami, Florida 33143

Julie Gallagher Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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 FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-002265F

Orders for Case No: 87-002265F