STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID'S PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5447F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES. )

)

Respondent. )

)

FINAL ORDER

A Petition for Costs and Fees with supporting documents was filed in this case on November 2, 1988, on behalf of David's Pharmacy (Petitioner) against the Department of Health and Rehabilitative Services (Respondent). To date, no responsive pleading of any kind has been filed in this matter on behalf of the Respondent. Accordingly, this case is decided on the basis of the pleadings in the file and supporting documents.

FINDINGS OF FACT

1. The Petitioner is a "small business party" sole proprietorship domiciled in Tampa, Florida, with less than 25 employees, and a net worth of less than $2 million.

   
   

2. The Respondent previously initiated action against Petitioner as a result of a Medicaid audit of Petitioner's pharmacy and identified an overpayment which it then sought to recover from Petitioner. A timely request for hearing was filed by Petitioner, and the matter was transmitted by the Respondent to the Division of Administrative Hearings where it was assigned Case Number 88-1668. The final hearing was held in Tampa, Florida, on June 22, 1988, before Donald D. Conn, Hearing Officer, and thereafter a Recommended Order was filed on August 17, 1988, which recommended that Respondent enter a Final Order dismissing its action against Petitioner, refunding any funds which it had withheld, plus interest, and removing all other sanctions. The Respondent approved and adopted this recommendation in its Final Order entered on September 15, 1988, by the terms of which Petitioner prevailed in the prior action initiated by the Respondent.

   
   

3. The Respondent was not a nominal party to the prior proceedings, and there is nothing in the record to show that the Respondent was substantially justified in bringing the prior action, or that any special circumstances exist which would make an award of fees and costs unjust.

   
   

4. On November 2, 1988, a Petition for Costs and Attorney's Fees was filed with the Division of Administrative Hearings by the Petitioner. The Petition is accompanied by an affidavit and supporting documents which are uncontroverted, and which establish that Petitioner incurred legal fees in the amount of

   $14,587.50 and costs of $1,437.77, as a result of the prior proceedings in Case

   Number 88-1668. In the Petition for Costs and Fees, the Petitioner specifically indicated that an evidentiary hearing was not requested.

   
   

5. No responsive pleading of any kind has been filed on behalf of the Respondent to this Petition for Costs and Fees.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Sections 57.111 and 120.57(1), Florida Statutes.

   
   

7. The Petitioner has filed a timely application for Attorney's Fees and Costs, and has properly alleged a basis upon which the maximum award of $15,000 can be made. Section 57.111(3), and (4) Florida Statutes; Rule 22I-6.035(1), (2), and (3), Florida Administrative Code. Once such a Petition has been filed, "The state agency shall either admit to the reasonableness of the fees and costs claimed or file a counter affidavit within twenty (20) days of the filing of the petition." (Emphasis supplied) See Rule 22I-6.035(4). The purpose of the counter affidavit is to specify each item of cost and fee in dispute. The state agency is also required to state whether it seeks an evidentiary hearing and to further specify the issues to be heard at such hearing. See Rule 22I-6.035(5). Only in the case of a timely request for an evidentiary hearing to be scheduled. See Rule 22I-6.035(6).

   
   

8. In this matter, the Respondent has taken no action of any kind in response to the timely filed Petition, even though more than twenty days have elapsed since its filing. Therefore, no issues have been specified to be in dispute, and no issues have been raised which are required to be heard in an evidentiary hearing. The Petitioner has specifically waived an evidentiary hearing, and thereby expressed no opposition to this matter being determined upon the filing of affidavits and supporting documents. The Respondent has simply not requested a hearing in its own right, or in any way controverted the affidavit and supporting documents filed herein by the Petitioner.

Accordingly, it is:

ORDERED THAT the Petitioner's request for an award of attorney's fees and costs is hereby GRANTED in the total amount of $15,000, as limited by Section 57.111(4)(d)2., Florida Statutes.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of December, 1988.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1988.

COPIES FURNISHED:

William M. Furlow, Esquire Post Office Box 1877 Tallahassee, Florida 32301

John Miller, Esquire General Counsel

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Clerk

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Coler, Secretary 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 THE FILING OF ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE CLERK OF 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 THIRTY DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-005447F

Orders for Case No: 88-005447F