STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BELTRAN PAGES, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-4948F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondent. )

)

FINAL ORDER

This cause came before the undersigned on a Second Amended Petition for Attorney Fees and Costs filed by Petitioner. The parties were represented in this cause as follows:

APPEARANCES

For Petitioner: Harry D. Dennis, Jr.

1401 E. Atlantic Boulevard Pompano Beach, Florida 33060

For Respondent: John R. Alexander

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

BACKGROUND AND PROCEDURAL MATTERS

This case began on October 11, 1988, when Petitioner filed a Motion For Attorney Fees with the Division of Administrative Hearings. Attached to the motion were affidavits relating the attorney's time expended in the case and the costs incurred. On October 25, 1988, Respondent filed a Motion to Dismiss, Answer, and Affirmative Defenses. The motion to dismiss was granted by order entered November 15, 1988, with leave to Petitioner to file an amended petition. On December 2, 1988, Petitioner filed a second amended Motion For Attorney Fees. Respondent's Motion for Summary Final Order, being treated as a Motion to Dismiss, was granted on December 22, 1988, with leave to Petitioner to file an amended petition. Petitioner's Second Amended Petition for Attorney Fees and Costs was then filed on January 9, 1989, and Respondent filed a renewal of its Notion for Summary Final Order, a Motion to Dismiss, and an Answer on January 11, 1989. Petitioner's responses to the Notion for Summary Final Order and the Motion to Dismiss were filed on January 19, 1989.

Petitioner's claim for fees and costs relates to an underlying case, Department of Professional Regulation, Board of Medicine v. Beltran K. Pages, M.D., 10 FALR 6558. The final order in the underlying case (DOAH case 87-4157) was entered August 19, 1988. The final order found there was competent

substantial evidence to support the findings of fact made in the recommended order entered May 31, 1988. Official recognition has been given to the record established in DOAH case No. 87-4157 and the facts set forth in the recommended order as adopted by the final order.

STATEMENT OF THE ISSUE

The central issue in this case is whether the Petitioner is a prevailing small business party as defined by law.

FINDINGS OF FACT

1. The administrative complaint in Department of Professional Regulation, Board of Medicine v. Beltran J. Pages, DOAH Case No. 87-4157, DPR Case No. 30291, was filed on September 23, 1987. This case was consolidated with another case then pending against Dr. Pages, DOAH Case No. 87-1882.

   
   

2. On October 15, 1987, an order was entered which denied Dr. Pages' request to dismiss Case No. 87-4157.

   
   

3. The hearing for both cases was conducted on January 26-27, 1988.

   
   

4. Pertinent to this cause is the following finding of fact reached in the Pages' order:

   
   

   Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane.

   
   

5. An exception was not filed to the finding of fact described in paragraph 4.

   
   

   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, known as the "Florida Equal Access to Justice Act," (FEAJA) provides, in pertinent part:

(3)(d) The term "small business party" means:

1.a. A sole proprietor of 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 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; (e.s.)

8. In the instant case, the Petitioner was not a sole proprietor or a sole practioner of a professional practice at the time the case was initiated by the state agency. At the time this case was initiated Petitioner was a state employee and, therefore, did not fall within the statutory definition of "small business party." Consequently, by definition, this Petitioner is not eligible under the FEAJA. Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840 (Fla. 1st DCA 1988).

Based on the foregoing, it is ORDERED:

That the Second Amended Petition for Attorney Fees and Costs is hereby DISMISSED.

DONE and ORDERED this 21st day of February, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 21st day of February, 1989.

COPIES FURNISHED:

Harry D. Dennis, Jr.

1401 E. Atlantic Boulevard Pompano Beach, Florida 33060

John R. Alexander Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, FL 32399-0250

Carroll Webb, Executive Director Administrative Procedures

Committee

120 Holland Building Tallahassee, FL 32399-1300

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: 88-004948F

Orders for Case No: 88-004948F