STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. H., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 90-0953F

   )

   DEPARTMENT OF HEALTH AND )

   REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   The final hearing in this case was held on May 16, 1990, in St. Petersburg, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: John A. Henninger, Esquire

   2037 First Avenue, North

   St. Petersburg, Florida 33713

   
   

   For Respondent: Raymond J. Greene, Esquire

   1100 Cleveland Street, Fifth Floor Clearwater, Florida 34625

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether the Petitioner is entitled to recover attorney's fees and expenses from the Respondent based upon the Respondent's actions involving a report of child abuse or neglect involving Petitioner's son.

   
   

   PRELIMINARY STATEMENT

   
   

   At the hearing, the Petitioner testified on his own behalf and introduced 6 exhibits; the Respondent did not call any witnesses or introduce any exhibits.

   
   

   No transcript of the final hearing was filed, and the parties were allowed ten days following the hearing within which to file proposed recommended orders. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. On or about May 15, 1989, the Petitioner was notified by Respondent that his request for amendment or expunction of a confirmed report of child abuse or neglect involving his son, J.H., on January 20, 1989, had been reviewed by the Respondent and denied.

   2. Petitioner timely sought review of the Respondent's denial of his request. The matter was transmitted to the Division of Administrative Hearings for formal proceedings, and was assigned Case Number 89-2780C.

      
      

   3. Prior to formal hearing in Case Number 89-2780C, the Respondent changed its classification of this report of abuse or neglect from confirmed to indicated, thereby removing reference to Petitioner as the perpetrator of abuse or neglect.

      
      

   4. By Order entered on January 26, 1990, the file in Case Number 89-2780C was closed, and jurisdiction relinquished to the Respondent based upon the change of classification of this report of abuse or neglect, and notification from the parties that they had reached a settlement in the matter.

      
      

   5. On February 13, 1990, the Petitioner filed a Motion for Attorney's Fees, Lost Wages, and Out-of-Pocket Expenses associated with Case Number 89- 2780C, which was assigned Case Number 90-0953F by the Division of Administrative Hearings. Subsequently, the Petitioner withdrew his request for lost wages and proceeds in this matter solely with his request for $1255.52 in attorney's fees and expenses associated with Case Number 89- 2780C.

      
      

   6. On February 16, 1990, the Respondent filed its Response to the Petitioner's Motion for Attorney's Fees and Expenses, and this case proceeded to final hearing. At no time has the Respondent raised any question concerning jurisdiction to consider an award of attorney's fees and expenses. The Petitioner cited no legal authority in his Motion for Attorney's Fees and Expenses, but at hearing, the provisions of Sections 120.59(6)(a) and 120.57(1)(b)5., Florida Statutes, were argued by the parties.

      
      

   7. No affidavits, testimony, or documentary evidence in support of the

      $55.52 in expenses requested in Petitioner's Motion has been presented, but the parties stipulated on the record to the reasonableness of the number of hours and hourly rate upon which Petitioner's request for $1200 in attorney's fees is based.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause.

      
      

   9. In pertinent part, Sections 120.57(1)(b)5. and 120.59(6)(a), Florida Statutes, provide:

      
      

      1. Decisions which affect substantial interests --

         1. Formal Proceedings.--

      (b) In any case to which this subsection

      is applicable, the following procedures apply:

      5. All pleadings, motions, or other papers filed in the proceeding must be signed .

      The signature constitutes a certificate that

      . . . (the pleading) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or for frivolous purposes or needless increase in the cost of litigation. If a pleading, motion or other

      paper is signed in violation of these requirements, the hearing officer, upon motion or his own initiative, shall impose upon the person who signed it . . . an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's

      fees. (Emphasis Supplied.)

      
      

      120.59 Orders. --

      (6)(a) In any proceeding pursuant to s. 120.57(1), a prevailing party shall be entitled to recover costs from the nonprevailing adverse party, and shall also be entitled to recover a reasonable attorney fee, as provided herein. The provisions

      of this subsection shall not apply to a prevailing or nonprevailing party that is an agency. (Emphasis Supplied.)

      
      

   10. In resolving the issue presented in this case, it is appropriate to start with the proposition that the award of attorney's fees is in derogation of the common law and that statutes allowing for the award of such fees should be strictly construed. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34, 37 (Fla. 1975). This is also referred to as the "American Rule" in that "in the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney's fee from the loser." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed 141 (1975). Each party generally pays their own attorney's fees unless express statutory authorization exists to the contrary. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 122 (8th Cir. 1987).

       
       

   11. An exception to this rule evolved under the inherent power of the courts to supervise and control their own proceedings which permits the court to award a reasonable attorney's fee to the prevailing party when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . .

       ." F.D. Rich Co., Inc. v. United States ex rel Industrial Lumber Co.1 Inc., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed 2d 703 (1974). An inherent power

       award may be imposed either for commencing, or for continuing an action in bad faith, vexatiously, wantonly, or for oppressive reasons. Oliveri v. Thompson, et al, 803 F.2d 1265, 1272 (2nd Cir. 1986)

       
       

   12. Of great help in determining whether the facts here involved require the award of attorney's fees and expenses are federal cases which interpret Rule

       11 of the Federal Rules of Civil Procedure, from which Section 120.57(1)(b)5., Florida Statutes, was derived. A comparison of the language of the rule with the language of the statute, as well as a review of the legislative history of Section 120.57(1)(b)5, confirms this federal source for this statute. See Staff Analysis HB 792 and HB 227, House of Representatives Committee on Governmental Operations, and memo from Paul H. Amundsen to Booter Imhoff, Esquire, dated April 14, 1986.

   13. In applying Rule 11, if the district court concludes that a motion, pleading, or other document was not well grounded in fact or warranted by the existing law, or was meant to harass, then the court must impose a sanction. See e.g., Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1082 (7th Cir. 1987). As stated in Brown v. Federation of State Medical Boards of the United States, 830 F.2d 1429, 1435 (7th Cir. 1987):

       
       

       Rule 11 contains two grounds for sanctions. Each ground is concerned with eliminating abuses in the federal courts. The first ground is the "frivolous clause." This portion of Rule 11 is composed of two subparts: Whether the party or attorney made a reasonable inquiry into the facts, and whether the party or attorney made a reasonable inquiry into the law. A violation of either part of the frivolous clause constitutes a violation of Rule 11.

       
       

       To determine whether the attorney in question made a reasonable inquiry into the law, the district court should consider: the amount of time the attorney had to prepare the document and research the relevant law; whether the document contained a plausible view of the law; the complexity of the legal questions involved; and whether the document was a good faith effort to extend or modify the law (citations omitted).

       
       

   14. The standard for testing conduct under Rule 11 is "reasonableness under the circumstances", an objective standard of good faith. Local 938 v. B.

       L. Starns Co. of Fla., et al, 827 F.2d 1454, 1458 (11th Cir. 1987). Where it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands, Rule 11 has been violated. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2nd Cir. 1985).

       
       

   15. The affirmative duty on an attorney to conduct a "reasonable inquiry" into both the factual and legal basis of any document before signing it does not mean that an attorney must be correct in his view of the law. A reasonable inquiry is that amount of examination into the facts and legal research which is reasonable under the circumstances of the case. Robinson v. National Cash Register Co., 808 F.2d 1119, 1127 (5th Cir. 1987).

       
       

   16. The record in this proceeding does not establish that Petitioner is entitled to an award of attorney's fees and expenses under Section 120.57(1)(b)5. It was not shown that any pleadings, motions or other papers were filed on behalf of the Respondent in Case No. 89-2780C to harass or cause unnecessary delay, for frivolous purposes, or to needlessly increase the cost of litigation. The Respondent was engaged in its statutory responsibility to investigate and classify any report of child abuse and neglect. At the request of the Petitioner, it reviewed his request to amend or expunge the confirmed

       report of abuse involving Petitioner, and notified him of his right to a Section

       120.57 hearing after denying his request for amendment or expunction. When Petitioner requested a formal hearing, the Respondent transmitted his request to this Division for hearing. Subsequently, the Respondent determined that the classification of this report should be changed to indicated, thereby removing Petitioner's name from the abuse registry as the perpetrator of abuse or neglect, and obviating the need for formal hearing. There is absolutely no evidence of any improper action by Respondent which would authorize an award of attorney's fees and expenses under Section 120.57(1)(b)5.

       
       

   17. Regarding Section 120.59(6)(a), by its very terms this statute does "not apply to a prevailing or nonprevailing party that is an agency". Thus, although this statute does authorize the recovery of a reasonable attorney's fee and costs by a prevailing party in a Section 120.57(1) proceeding under certain circumstances, such an award against an agency is specifically prohibited by this statute. The Respondent is clearly an "agency" for purposes of Chapter 120 as that term is defined in Section 120.52(1)(b), Florida Statutes. Therefore, Section 120.59(6)(a) cannot support Petitioner's request for an award of attorney's fees and costs against Respondent.

RECOMMENDATION

Based upon the foregoing, it is recommended that Department enter a Final Order denying Petitioner's Motion for Attorney's Fees and Expenses.

DONE AND ENTERED this 8th day of June, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990.

APPENDIX

(DOAH CASE NO. 90-0953F)

The Petitioner did not file proposed findings of fact, separately numbered, upon which rulings could be made. The Petitioner's post-hearing brief has been considered.

Rulings on the Respondent's Proposed Findings of Fact:

1-5. Rejected as not based upon any evidence of record in this proceeding.

1. Adopted in part in Finding 1, but otherwise Rejected as without support in the record of this proceeding.

2. Adopted in part in Findings 3 and 4.

3. Adopted in Finding 5.

4. Rejected in Finding 7, and as contrary to pages 3 and 4 of Petitioner's post-hearing brief.

COPIES FURNISHED:

John A. Henninger, Esquire 2037 First Avenue, North

St. Petersburg, Florida 33713

Raymond J. Greene, Esquire 1100 Cleveland Street Fifth Floor

Clearwater, Florida 34625

R. S. Power, Agency Clerk 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, General Counsel 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

B. H., )

)

Petitioner, )

)

vs. ) CASE NO.: 90-0953F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference, the findings of fact set forth in the Recommended Order.

CONCLUSION5 OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that B. H.'s Motion for Attorney's Fees and Expenses be DENIED. The department's case is hereby CLOSED.

DONE and ORDERED this 20th day of July, 1990, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Operations

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

John A. Henninger, Esquire 2037 First Avenue, North St. Petersburg, FL 33713

Raymond J. Greene, Esquire 1100 Cleveland Street

Fifth Floor Clearwater, FL 34625

Donald D. Conn Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-155O

Angela P. Lodge

Human Services Program Analyst Dept. of HRS, District 5

701 94th Avenue, North St. Petersburg, FL 33702

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 31 day of July, 1990.

R .S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 90-000953F

Orders for Case No: 90-000953F