STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0859F

)

J. S., )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case by telephone conference call on April 25, 1988, before Arnold H. Pollock, Hearing Officer, and by agreement filed by counsel upon waiver of continued hearing. The issue for consideration was whether J. S. should be awarded attorney's fees and costs from Department of Health and Rehabilitative Services by virtue of the action arising out of a report of neglect maintained by Department of Health and Rehabilitative Services regarding J. S.

APPEARANCES

For Petitioner: Deborah Studybaker, Esquire

Department of Health and Rehabilitative Services

2285 First Street Post Office Box 2246

Ft. Myers, Florida 33902

For Respondent: Barry A. Roth, Esquire

Post Office Drawer 2650 Ft. Myers, Florida 33902

BACKGROUND INFORMATION

In March, 1987, the Department of Health and Rehabilitative Services (Department) denied J. S.'s request for expungement of an indicated report of neglect of an adult in Lee County, Florida. J. S. requested a formal hearing after which the undersigned, Hearing Officer at the formal hearing thereon, entered an order recommending the indicated report be reclassified as unfounded and expunged from the records of Department of Health and Rehabilitative Services. The Department concurred and entered a Final Order consistent with the Recommended Order.

On or about February 24, 1988, J. S. filed a Motion for Attorney's Fees and Costs, contested by the Department, and the matter was set for formal hearing before the undersigned on April 25, 1988, by telephone conference call at the request of the parties. During argument by counsel it was determined that neither the agency nor J. S. had arranged for the hearing to be recorded and the

undersigned ruled the hearing to that point was a nullity. Counsel for both parties then requested that the matter be put before the Hearing Officer by affidavit and written agreement in lieu of hearing. By Order dated April 26, 1988 the undersigned made provision toward that end.

J. S. submitted argument in writing, supported by Exhibit A, (HRSM 140-2, PP3-11 through 3-22) and had previously submitted a statement from counsel reflecting hours spent on behalf of the client in this matter, and costs. Counsel for the Department thereafter submitted a written response to J. S.'s argument. No contest was made of the number of hours claimed, the total figure for fee, or the amount claimed for costs. The Department's sole argument is on the question of J. S.'s entitlement to an award of fees and costs, in any amount, under Section 57.111, Florida Statutes.

FINDINGS OF FACT

1. On January 16, 1987, Department of Health and Rehabilitative Services notified J. S. By letter that it had received a report of neglect regarding him and advised him of his right to request the report be amended or expunged. J.

   S. did so but on February 26, 1987, the Department advised him his request for expungement had been denied. Thereafter, J. S. requested a formal hearing which was held by the undersigned on October 27, 1987.

   
   

2. After a full, formal hearing on the merits, at which both testimony and documentary exhibits were presented by both parties, the undersigned, on December 1, 1987, entered a Recommended Order in which it was found, as a matter of fact, that while the alleged victim of the neglect was incapable of totally caring for himself, the evidence presented was insufficient to establish that the relationship between the victim and J. S. was a care-giving one or that J.

   S. had the responsibility to look out for the victim so as to bring him within the purview of the statute.

   
   

3. The Department thereafter entered a Final Order consistent with the Recommended Order, amending the classification of the report to "unfounded" and expunging it from the Department records.

   
   

4. Evidence introduced at the original formal hearing held herein established that J. S. was an employee, (resident manager) at the Royal Palm Retirement Home in Ft. Myers, Florida. He was not the owner of the facility nor was any evidence introduced to indicate he had any financial interest, other than as an employee, in the facility. Further, he was not engaging in the professional practice of a licensed profession. His relationship with the alleged victim was found to be no more than that of landlord-tenant.

   
   

5. The Department's investigation of the alleged neglect, while not completely comprehensive, nonetheless was sufficiently thorough to meet the test of reasonableness.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

7. Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act, permits certain persons to seek review of or defend against unreasonable governmental action because of the expense of civil actions and administrative

   proceedings. In the event the person Theets the qualifications set out in the statute, he may recover an award of attorney's fees and costs against the state.

   
   

8. Initially, the claimant must show that the action was "initiated by a state agency." That term is defined in the statute as filing the first pleading in court, filing a request for administrative hearing pursuant to Chapter 120, or being 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 pre- form proceeding of the agency.

   
   

9. Here the agency filed neither a pleading nor a request for an administrative hearing. That latter action was accomplished by J. S. after being advised of his right to do so in the neglect investigating/recording process of the agency. Therefore, if J. S. were to qualify as a "small business party" as identified by the statute, he would be a lawful claimant.

   
   

10. The term, "small business party" is defined in the statute as, in pari materia,

    
    

    "A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state

    who is domiciled in this state,. . ."

    
    

    J. S. is not the sole proprietor of an unincorporated business nor is he engaged in a professional practice as envisioned by the statute. At best, as a licensed ACLF manager, he was an employee of the ACLF for which he worked and albeit his ability to continue in that line of work would have been terminated had the report remained, he does not qualify as a "small business party" within the meaning of intent of the legislation.

    
    

11. Having concluded thus, it is clear that J. S. cannot recover due attorney's fees or costs under the terms of this statute. It is noted, however, that in addition, the proceeding in which J. S. found himself was "substantially justified" as defined in the statute, as it had a reasonable if erroneous basis in law and in fact at the time it was initiated.

It is, therefore:

ORDERED THAT:

J. S.'s request for an award of attorney's fees and costs from the Department of Health and Rehabilitative Services is hereby denied.

DONE and ORDERED this 7th day of June, 1988, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 7th day of June, 1988.

COPIES FURNISHED:

Deborah Studybaker, Esquire 2285 First Street

Post Office Box 2246

Ft. Myers, Florida 33902

Barry A. Roth, Esquire Post Office Drawer 2650 Ft. Myers, Florida 33902

R. S. Power, Agency Clerk 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

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: 88-000859F

Orders for Case No: 88-000859F