STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. F., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 94-5209F

   ) BOARD OF COUNTY COMMISSIONERS, ) HILLSBOROUGH COUNTY, FLORIDA, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER OF DISMISSAL

   
   

   This matter came before the undersigned on Petitioner's Petition For Reimbursement of Back pay and Legal Expenses from the Respondent, Board of County Commissioners of Hillsborough County, Florida.

   
   

   APPEARANCES

   
   

   For the Petitioner: James O'Neal Williams, Esquire

   A Aaffordable Legal Center, P.A. 1913 West Sligh Avenue, Suite A Tampa, Florida 33604

   
   

   For the County: Susan Johnson-Velez, Esquire

   Office of the County Attorney Hillsborough County, Florida Post Office Box 1110

   Tampa, Florida 33601 STATEMENT OF THE ISSUES

   The issue for consideration in this matter is whether Respondent, Hillsborough County, is responsible for Petitioner's attorney's fees and costs arising out of a hearing on Petitioner's placement on the Child Abuse Registry maintained by the Florida Department of Health and Administrative Services which resulted in a determination that his name should be expunged from the registry.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner was an employee of the Respondent at a boys' detention center in Hillsborough County when he was accused by a resident thereof of having physically abused him. The matter was reported to the Department of Health and Rehabilitative Services' Abuse Register and, thereafter, Petitioner requested a hearing under Section 120.57(1), Florida Statutes, on the Department's denial of his request to amend or expunge the report of abuse.

      
      

   2. A formal hearing was thereafter held on the matter before the undersigned who, on January 10, 1994, entered a Recommended Order to the effect that the abuse report be amended and closed without classification, since the

      evidence presented at the hearing did not establish that Petitioner has abused the resident. This Recommended was subsequently sustained by the Secretary who, in his Final Order dated July 7, 1994, so ordered.

      
      

   3. Thereafter, Respondent's counsel sought reimbursement for the attorney's fees and costs expended by Respondent under the provisions of Section 111.07, Florida Statutes. In response, the Hillsborough County Attorney concluded that Petitioner was not a permanent County employee but a relief employee, and, thereby, was not entitled to reimbursement. By Petition dated September 28, 1994, a copy of which was not forwarded to a representative of the Board of County Commissioners or any representative of Hillsborough County, Petitioner now seeks reimbursement in the amount of $1,500.00 for attorney's fees and such other relief as the "Court" may deem fit and proper.

      
      

   4. By Order to Show Cause dated November 28, 1994, the undersigned directed counsel for Petitioner to advise the undersigned in writing by December 10, 1994, of the jurisdictional basis for its claim against the Board of County Commissioners before the Division. No response has been forthcoming.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceedings. Section 120.57(1), Florida Statutes.

      
      

   6. Attorney's fees and litigation expenses are provided for county employees under the provision of Section 111.07, Florida Statutes, for defense of a civil action arising out of the employee's performance of duties. The placement of Petitioner on the Department's abuse registry is not such a civil action.

      
      

   7. Attorney's fees and costs are also provided under Section 57.111, Florida Statutes, for payment to small business parties who prevail in a matter initiated by the State of Florida or an instrumentality thereof. Petitioner was a relief employee of Hillsborough County, not a small business party, and his claim was, therefore, not cognizable under that provision.

      
      

   8. Finally, attorney's fees and costs are also taxable under Section 120.57(1)(b)5, Florida Statutes, when the action is initiated for a frivolous or improper purpose. Here, there is no showing the action by the Department was either frivolous or improper, and in any case, the claim for reimbursement was made against the Board of County Commissioners. Petitioner having failed to show any legal basis for his claims against the Board, as filed before the Division of Administrative Hearings, it is, therefore:

ORDERED THAT

Petitioner's Petition For Reimbursement Of Back Pay and Legal Expenses is hereby DISMISSED.

DONE and ORDERED in Tallahassee, Florida this 13th day of December, 1994.

ARNOLD H. POLLOCK

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 13th day of December, 1994.

COPIES FURNISHED:

James O'Neal Williams, Esquire A Aaffordable Legal Center, P.A. 1913 West Sligh Avenue, Suite A Tampa, Florida 33604

Susan Johnson-Velez, Esquire Assistant County Attorney Office of the County Attorney Hillsborough County, Florida

P.O. Box 1110

Tampa, Florida 33601

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

District Legal Counsel DHRS-District 6

4000 W. Dr. M.L. King, Jr. Blvd. Tampa, Florida 33614

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, (or, when appropriate, a certificate of indigence), 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: 94-005209F

Orders for Case No: 94-005209F