STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. S., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 92-2127F

   )

   DEPARTMENT OF HEALTH AND )

   REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on August 12, 1992, in Fort Myers, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Richard W. Pringle, Esquire

   STRAYHORN & STRAYHORN

   2125 First Street, Suite 200 Fort Myers, Florida 33901

   
   

   For Respondent: Deborah Studybaker, Esquire

   District Screening Attorney DHRS District Eight

   Post Office Box 06085

   Fort Myers, Florida 33906 STATEMENT OF THE ISSUE

   Whether the Petitioner is entitled to attorneys' fees and costs under the provisions of Section 57.111, Florida Statutes.

   
   

   PRELIMINARY STATEMENT

   
   

   By Claim For Attorneys' Fees and Costs filed April 6, 1992, Petitioner V.S. sought an award of fees under the provisions of Section 57.111 Florida Statutes. Specifically, the Petitioner asserted that she was a small business party entitled to fees based upon the Respondent's voluntary dismissal of a prior action involving allegations of child abuse and/or neglect committed by the Petitioner.

   
   

   At the hearing, Petitioner presented no testimony and had five exhibits admitted into evidence. The Respondent presented the testimony of Michael J. Hally, Jan Friesema and James Vidrine, and had two exhibits admitted into evidence.

   No transcript of the hearing was filed. Both parties filed proposed orders which were considered in the preparation of this Final Order. Rulings on the proposed findings of fact are included in the Appendix which is attached and hereby made a part of this Final Order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner V.S. is the managing director of Source of Light and Development, Inc., a non-profit corporation which operates "Hope House", a licensed emergency shelter home. The license is issued jointly to V.S. and to Hope House. There is no evidence that the Petitioner is the sole owner of the facility or the corporation.

      
      

   2. The evidence establishes that the shelter could continue to operate under the direction of another individual if V.S. were no longer responsible for the facility.

      
      

   3. At some point in 1991, Respondent Department of Health and Rehabilitative Services ("DHRS") received a report alleging that V.S. had been driving under the influence while a resident of Hope House was in the vehicle. Although the record is unclear as to what information was available to the agency at that time, (the Hope House resident allegedly in the vehicle operated by V.S. refused to offer a statement) the DHRS classified the report as proposed confirmed and advised V.S. that she could request that the classification be reviewed.

      
      

   4. On July 19, 1991, V.S. requested that a proposed confirmed report of abuse or neglect be expunged or amended. Thereafter, the matter was assigned to Michael J. Hally, an expunction analyst for the agency.

      
      

   5. Mr. Hally initially reviewed the statements of three law enforcement personnel taken at the time of the event. The law enforcement officials were apparently responding to a reported altercation at the Hope House. Hally then spoke to the law enforcement personnel who provided confirmation of their prior reports.

      
      

   6. Hally subsequently discussed the matter with the resident who essentially stated that V.S. had consumed alcohol and become intoxicated while operating a car in which the resident was riding.

      
      

   7. During this period of time, V.S., through legal counsel, attempted to identify and provide to Mr. Hally a number of persons who could provide exculpatory information on V.S.'s behalf. Mr. Hally interviewed the persons identified by counsel. Based upon the information available, the DHRS determined the report to be correctly classified.

      
      

   8. On August 20, 1991, the DHRS informed V.S. that her expunction request was denied and notified her of the right to challenge the agency's determination through the formal administrative hearing process. On September 25, 1991, V.S. requested a formal hearing to challenge the agency's refusal to expunge or amend the report. The case was forwarded to the Division of Administrative Hearings which scheduled the matter for hearing.

      
      

   9. In preparation for formal hearing, the deposition of the resident was taken. Subsequently, the DHRS determined that the credibility of her testimony would be subject to attack. Based on the resident's lack of credibility, the DHRS, on February 4, 1992, filed a notice of voluntary dismissal of the case.

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. In an administrative proceeding initiated by a state agency pursuant to Chapter 120, Florida Statutes, an award of attorney fees and costs may be made to a prevailing small business party unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. Section 57.111(4)(a), Florida Statutes. A small business party is a "prevailing small business party" when the state agency has sought a voluntary dismissal of its complaint. Section 57.111(3)(c)3., Florida Statutes.

       
       

   12. The Petitioner has the burden of establishing that she is a small business party, that s-he prevailed in the prior action, and that the prior action was initiated by a state agency. Once this burden is met, the agency must then demonstrate that its actions were substantially justified or that special circumstances exist which would make the award unjust. Gentele v. Department of Professional Regulation, 513 So.2d 672 (Fla. 1st DCA 1987). The proceeding may be substantially justified, even where the agency does not prevail. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated.

       
       

   13. By affidavit, the Petitioner indicates that she is a small business party. In relevant part, the term "small business party" is defined at Section 57.111(3)(d), Florida Statutes, as follows:

       
       

       The term "small business party" means:

       1. A sole proprietorship 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; or

          b. 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 than $2 million....

          
          

   14. However, in this case, the underlying action was directed, not towards the licensed entity the Petitioner operates, but towards the Petitioner individually. The evidence establishes that, had the Petitioner not prevailed in the underlying action, the facility could continue to operate under the supervision of another individual.

       
       

   15. However, even were the Petitioner to meet the definition of "small business party", an award of fees in this case would be unjust. The DHRS investigation considered all available information and determined that there was sufficient evidence to support a classification of the report as confirmed.

Subsequent to the classification of the report and V.S.'s request for formal hearing, the deposition of the resident revealed inconsistencies which apparently made it unlikely that the DHRS would prevail. There is no evidence that the resident's assertions were inconsistent prior to the deposition, or that the agency acted improperly in crediting her assertions prior to the deposition.

FINAL ORDER

Based on the foregoing, it is hereby ORDERED that

The Petitioner's Claim for Attorneys' Fees and Costs is DENIED.

DONE and ENTERED this 19th day of October, 1992, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 19th day of October, 1992.

APPENDIX TO CASE NO. 92-2127F

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order, except as follows:

1. Rejected, unnecessary to restate statute.

2. Rejected, contrary to testimony which establishes that additional parties were interviewed by investigator.

4. Rejected, legal argument, not finding of fact.

12.b. Rejected, immaterial.

12.d. Rejected, contrary to the evidence which establishes that the license contains the Petitioner's name and the facility name.

12.f. Rejected, contrary to the evidence which establishes that invoices contain the Petitioner's name and the facility name.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard W. Pringle, Esq. 2125 First Street, Suite 200 Fort Myers, Florida 33901

Deborah Studybaker, Esq. DHRS District Eight

P. O. Box 06085

Fort Myers, Florida 33906

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: 92-002127F

Orders for Case No: 92-002127F