STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. S. and H. S., )

   )

   Petitioners, )

   )

   vs. ) CASE NO. 92-3701F

   ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER OF DISMISSAL

   
   

   By Order entered July 20, 1992, Petitioners were afforded twenty days in which to file an amended petition setting forth with particularity the legal authority which they allege entitles them to be reimbursed for attorney's fees and costs in this proceeding. On August 6, 1992, Petitioners filed their Amended Petition For Payment Of Attorney's Fees And Costs. Although Respondent has failed to file anything in response to the Amended Petition, the Amended Petition cannot be granted.

   
   

   The Amended Petition alleges that Petitioners were required to retain the services of an attorney to represent them in the underlying proceedings from January 15, 1992 through June 8, 1992, thereby incurring attorney's fees and costs. The Amended Petition further alleges that Respondent filed a Notice Of Dismissal prior to the final hearing in the underlying proceedings, DOAH Case Nos. 92-0378C and 92-0379C. Paragraph 6 of the Amended Petition then alleges as follows:

   
   

   That this Court has authority to award fees and costs to the Petitioners in this action pursuant to Section 57.105, 57.111 and 120.59 Florida Statutes.

   
   

   Section 57.105, Florida Statutes, provides that a court shall award a reasonable attorney's fee in any civil action in which the court finds a complete absence of a justiciable issue of law or of fact. Since the Division of Administrative Hearings is not a court, and since an administrative proceeding is not a civil action, Petitioners are not entitled to attorney's fees and costs pursuant to Section 57.105, Florida Statutes.

   
   

   Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act, provides for attorney's fees and costs to be awarded to a prevailing small business party and provides the definition of the term "small business party." The underlying proceedings arose from the Department's denial of Petitioners' request that the Department amend or expunge an abuse report so that Petitioners would not be named as confirmed perpetrators in the Department's abuse registry. There is no indication in the record of the underlying proceedings that Petitioners were named in that report of abuse, neglect, or exploitation, in any capacity other than as individuals. This record and the records in the

   underlying proceedings being devoid of any indication that Petitioners' involvement in the underlying proceedings was in their capacity as a small business party, no attorney's fees or costs can be awarded to petitioners pursuant to Section 57.111, Florida Statutes.

   
   

   Section 120.59(6), Florida Statutes, provides for the payment of attorney's fees and costs to a prevailing party upon a determination by the hearing officer that a nonprevailing adverse party participated in the proceeding for an improper purpose. That section, however, Specifically provides that it does not apply to a prevailing or non-prevailing party that is an agency. The non- prevailing adverse party in the underlying proceedings was Respondent, a state agency. Accordingly, Petitioners are not entitled to an award of attorney's fees and costs pursuant to Section 120.59(6), Florida Statutes.

   
   

   Since an award of attorney's and costs cannot be made to Petitioners pursuant to any of the three statutory provisions relied on by Petitioners in their Amended Petition as a matter of law, it is, therefore,

   
   

   ORDERED that:

   
   

   1. Petitioners' Amended Petition For Payment Of Attorney's Fees And Costs be and the same is hereby dismissed sua sponte.

      
      

   2. The file of the Division of Administrative Hearings is hereby closed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of September 1992.

LINDA M. RIGOT

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 2nd day of September 1992.

COPIES FURNISHED:

Kenneth Kramer, Esquire Suite 800

One South Andrews Avenue

Fort Lauderdale, Florida 33301

Jacqueline Banke, Esquire Department of Health and

Rehabilitative Services Suite 513

201 West Broward Boulevard Fort Lauderdale, Florida 33301

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 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 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: 92-003701F

Orders for Case No: 92-003701F