STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD GAMBALE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0566

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PODIATRIC MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 14, 1994, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether the Petitioner should be given a passing grade on the podriatry examination he is challenging; and (2), in light of his failure to appear at the final hearing, whether the Department should assess attorney fees, costs and court costs under Section 455.229(3), Fla. Stat. (1993).

PRELIMINARY STATEMENT

By letter dated January 9, 1994, the Petitioner challenged his failing grade on the podiatry licensure examination administered by the Department on August 20, 1993. On February 1, 1994, the Department referred the matter to the Division of Administrative Hearings (DOAH) for formal administrative proceedings. By Notice of Hearing issued on March 7, 1994, the case was scheduled for final hearing at 1:00 p.m. on Tuesday, June 14, 1994.

At final hearing, the Department appeared through its attorney, along with its expert witnesses, but the Petitioner failed to appear.

On the Petitioner's failure to appear, the Department moved ore tenus for an award of attorney fees, costs and court costs under Section 455.229(3), Fla. Stat. (1993). The Department was given ten days to put its motion in writing, along with supporting affidavits. The Department's Motion for Recommended Order that Petitioner Pay Respondent's Reasonable Attorney's Fees, Costs, and Court Costs was filed on June 23, 1994. Although a copy of the motion was served on the Petitioner two days before its filing, the Petitioner has not responded to the motion.

FINDINGS OF FACT

1. The Petitioner took the podiatry licensure examination administered by the Department on August 20, 1993, and received a failing grade.

   
   

2. The Petitioner had due notice of the final hearing scheduled in this matter on June 14, 1994, by virtue of the Notice of Hearing issued on March 7, 1994.

   
   

3. It also is clear that the Petitioner had actual notice of the scheduled final hearing. Counsel for the Department was in telephone communication with the Petitioner in the weeks before the scheduled final hearing and discussed the scheduled final hearing with the Petitioner. The Petitioner requested an opportunity to review the examination (for the second time) at 11:00 a.m. on the day of the final hearing (which was scheduled to begin at 1:00 p.m.) Counsel for the Department acceded to the Petitioner's request and, together with the Department's psychometrician, appeared at the final hearing site at 11:00 a.m.

   
   

4. The Petitioner did not appear either at 11:00 a.m. or at 1:00 p.m. and had not appeared by the time the final hearing was concluded at approximately 1:33 p.m. The Petitioner gave no notice that he would not appear and has given no explanation why he did not appear.

   
   

5. The Petitioner also has not responded to the Department's Motion for Recommended Order that Petitioner Pay Respondent's Reasonable Attorney's Fees, Costs, and Court Costs which was served on June 21, and filed on June 23, 1994.

   
   

6. The Department expended $651.04 for fees and costs related to its attorney's preparation for, travel to and from, and participation in the final hearing. The Department expended $826.14 for fees and costs related to its psychometrician's preparation for, travel to and from, and participation in the final hearing. The Department expended $239.20 for fees and costs related to its podiatry expert's preparation for, travel to and from, and participation in the final hearing.

   
   

   CONCLUSIONS OF LAW

   
   

7. As the Petitioner in an examination challenge, the Petitioner had the burden of presenting evidence to prove that he was entitled to a passing grade on the podiatry licensure examination administered by the Department on August 20, 1993. See Florida Department of Transportation vs. J.W.C. Company Inc., 396 So.2d (Fla. 1st DCA 1981). Having failed to appear at the final hearing, the Petitioner failed to meet his burden of proof.

   
   

8. Section 455.229(3), Fla. Stat. (1993), provides:

   
   

   Unless an applicant notifies the department at least 5 days prior to an examination

   hearing of the applicant's inability to attend, or unless an applicant can demonstrate an extreme emergency for failing to attend, the department may require an applicant who fails to attend to pay reasonable attorney's fees, costs, and court costs of the department for the examination hearing.

   
   

   Under the facts of this case, an award is appropriate under this statute.

   
   

9. In this case, the Department expended a total of $1,716.38 for reasonable attorney fees, costs, and court costs for the examination hearing scheduled for June 14, 1994.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a final order denying the Petitioner's examination challenge and assessing against the Petitioner attorney fees, costs, and court costs in the amount of $1,716.38.

RECOMMENDED this 15th day of July, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 15th day of July, 1994.

COPIES FURNISHED:

Gerald J. Gambale 9713 Morehead Lane

Port Richey, Florida 34668

Vytas J. Urba, Esquire Assistant General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire Acting General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Diane Orcutt, Executive Director Board of Podiatric Medicine Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-000566

Orders for Case No: 94-000566