.STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES NEWBERRY, JR., )

)

Petitioner, )

)

vs. ) Case No. 98-2883F

)

BOARD OF ORTHOTISTS )

AND PROSTHETISTS, )

)

Respondent. )

)

FINAL ORDER

This cause was originated by the Petitioner's Motion for Award of Costs and Attorney's Fees, (hereafter Petition).

Respondent filed a Motion to Dismiss. No response to the motion was timely filed. Oral argument was heard by telephonic conference call on August 27, 1998. Over objection of Respondent, the parties were granted seven days (until September 3, 1998) to file further written arguments.

Respondent filed no written argument. Petitioner's Memorandum of Law in Support of Award of Costs and Attorney's Fees was filed on September 4, 1998. Since the Division of Administrative Hearings was closed on September 3, 1998, due to Hurricane Earl, Petitioner's memorandum is deemed timely and has been considered.

FINDINGS OF FACT

1. Petitioner is James Newberry Jr., who was also the

   Petitioner in the underlying challenge to Emergency Rule

   
   

   64B14ER98-1 of Respondent Florida Board of Orthotists and Prosthetists, designated as DOAH Case No. 98-1186RE.

2. The underlying case was brought pursuant to Section 120.56(5), Florida Statutes, pertaining to "Challenging Emergency Rules; Special Provisions." Mr. Newberry prevailed therein.

3. The instant costs and fees case has been brought, in the alternative, pursuant to Sections 120.595(3) and 57.041, Florida Statutes. These are the only statutes relied upon in the Petition.

4. In oral argument, Petitioner's counsel acknowledged that no case law exists to support an award of fees and/or costs under Section 57.041, Florida Statutes.

5. The Petition does not contain an allegation that Petitioner incurred the attorney's fees set out in the attached affidavit of Ryan Garrett.

6. The Petition does not attach any contract for attorney's fees.

7. Petitioner's counsel acknowledged orally that no contract for fees existed and that the statements of the attorneys representing Petitioner addressed to "The Board of Orthotists Certification" in Baltimore, Maryland were addressed in that way because of an agreement between that private corporate entity and Petitioner Newberry, who is one of its

   members. By that agreement, apparently not reduced to writing, the Maryland corporation agreed to provide Petitioner with an

   
   

   attorney and pay the attorney's fees and further advanced all Petitioner's costs.

8. "The Board of Orthotists Certification," also known as "The Board for Orthotics and Prosthetics Certification," of Baltimore, Maryland was not a party to the underlying emergency rule challenge. No evidence of its standing, if any, to challenge the emergency rule nor even of its involvement with Mr. Newberry for fee purposes was presented in DOAH Case No. 98- 1186RE.

   CONCLUSIONS OF LAW

   
   

9. The foregoing findings of fact do not establish that Petitioner Newberry, who prevailed in the underlying cause, has either incurred, or is entitled to an award of, attorney's fees and costs.

10. "The Board of Orthotists Certification," also known as "The Board of Orthotics and Prosthetics Certification" is not named as a Petitioner in this fees and costs case. Amendment of the Petition herein to name "The Board of Orthotists Certification," also known as "The Board of Orthotics and Prosthetics Certification" as the entity seeking fees and costs would be fruitless. That entity has no standing to bring a Petition for attorney's fees and costs, because it was not a

    party to the underlying case wherein Mr. Newberry prevailed.

    
    

11. As acknowledged by the parties, there is no case law supporting an award herein under Section 57.041, Florida Statutes. Also, there simply is no authority or jurisdiction in an Administrative Law Judge of the Division of Administrative Hearings to award attorney's fees and costs pursuant to Section 57.041, Florida Statutes. Chapter 57, Florida Statutes, applies to "Court Costs" in Article V courts of the judicial branch. Section 57.041 specifically provides:

    57.041 Costs; recovery from losing party.–

    1. The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.

    2. Costs may be collected by execution on the judgment or order assessing costs.

    There has been no "judgment" of an Article V court. Florida case law is clear that Section 57.041, Florida Statutes, applies only to Article V courts, not administrative proceedings. See, Allen United Enterprises v. Special Disability Trust Fund, 288 So. 2d

    204 (Fla. 1974), and City of Naples Airport Authority v. Collier Development Corporation, 515 So. 2d 1058 (Fla. 2d DCA 1987)

12. Finally, the Division of Administrative Hearings had jurisdiction of DOAH Case No. 98-1186RE pursuant to Section 120.56(5), Florida Statutes, "Challenging Emergency Rules; Special Provisions." This statutory jurisdictional basis was found, determined, and concluded in Paragraph 56 of that case's

    unappealed Final Order. Therefore, that basis of jurisdiction is "law of the case" for purposes of this instant proceeding for fees and costs.

    
    

13. However, the Petition in the instant proceeding seeks attorney's fees pursuant to Section 120.595(3), Florida Statutes.

14. Section 120.595(3), Florida Statutes, entitled, "Challenges to Existing Agency Rules Pursuant to Section 120.56(3)," provides only for an award of fees and costs for a rule challenge under Section 120.56(3), Florida Statutes.

15. In fact, each provision of Section 120.595 specifically references the type of administrative proceeding to which the respective attorney's fee provision applies:

    1. Section 120.595(1), Florida Statutes, provides for attorney's fees in Section 120.57(1) [disputed issues of material facts] hearings.

    2. Section 120.595(2), Florida Statutes, provides for attorney's fee in challenges to proposed rules under Section 120.56(2), Florida Statutes.

    3. Section 120.595(3), Florida Statutes provides for attorney's fees in rule challenges to existing rules under Section 120.56(3), Florida Statutes.

    4. Section 120.595(4) provides for attorney's fees in challenges brought under Section 120.56(4), Florida Statutes, challenges to agency statements.

    5. Section 120.595(5), Florida Statutes provides for attorney's fees on appeal.

16. There simply is no statutory provision for an award of

    attorney's fees or costs for challenges to emergency rules brought under Section 120.56(5), Florida Statutes.

17. Although some might characterize this omission as a "loophole" or an "oversight," the legislature is presumed to know what it is doing and to intend to enact into law that which it, in fact, enacts. The legislature is presumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute. King v. Ellison, 648 So. 2d 666 (Fla. 1994) The courts cannot use the machinery of construction to amend, modify, or repeal valid statutes. See Holly v. Auld, 450 So. 2d 217 (Fla. 1984), Fla. Jur. 2d, "Constitutional Law" Section 170 and Fla. Jur. 2d, "Statutes" Section 120. A court may not attribute to the legislature an intent beyond that expressed, Bill Smith, Inc. v. Cox 166 So. 2d 497, (Fla. 2d DCA 1964).

18. Moreover, the time-honored principle of statutory construction, expressio unius est exclusio alterius (the mention of one thing in a statute implies the exclusion of another) is applicable here. See Brown v. State, 672 So. 2d 861 (Fla. 3d DCA 1996) and Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898 (Fla. 1996). As the Court in Brown opined, in quoting State v. C.H., 421 So. 2d 62, at pages 65-66, quoting Moore v. State,

    343 So. 2d 601, at pages 603-604 (Fla. 1977), "Our duty [is] to give effect to legislative enactments despite any personal opinions as to their wisdom or efficacy. No principle is more

    firmly embedded in our constitutional system of separation of powers and checks and balances."

19. Paragraph 89 of the Final Order in underlying DOAH Case No. 98-1186RE clearly rejected the Agency's assertion that because Section 120.56(3), Florida Statutes, specifically provides that an existing rule becomes void only when the time for filing an appeal of the first order has expired, the challenged Rule 64B14ER98-1 could not be ruled void ab initio:

    Based on its statement of reasons for finding an immediate danger to the public health, safety, and welfare, the Board exceeded its authority under Section 120.54(4) when it promulgated an emergency rule establishing fees for provisional licensure and licensure by endorsement, and these portions of the emergency rule are invalid and void. Given that there was no emergency justifying the adoption of fees for provisional licensure and licensure by endorsement, the Board acted without authority or power and its emergency rule should be ruled void ab

    initio. If an emergency rule exceeds the

    legislative authority of an Agency, then no portion of the rule should be salvaged.

    
    

20. The foregoing rejection of the Agency's assertion that Section 120.56(3), governing existing rules, was applicable to the underlying challenge of an emergency rule is now res judicata and "law of the case" for the instant proceeding, and an award of fees and costs would be inconsistent therewith.

It is ORDERED:

The Petition herein is denied and dismissed.

DONE AND ORDERED this 21st day of September, 1998, in

Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1998.

COPIES FURNISHED:

Ryan Garrett, Esquire Collins & Truett, P.A.

2804 Remington Circle, Suite 4

Tallahassee, Florida 32308

Jason D. Wallach, Esquire Dickstein, Shapiro, Morin

& Oshinsky, LLP

2101 L Street, Northwest Washington, DC 20037-1526

Lee Ann Gustafson, Esquire Office of the Attorney General Department of Legal Affairs Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

Joe Baker, Executive Director Department of Health

Board of Orthotists and Prosthetists 1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO APPEAL

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 the 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: 98-002883F

Orders for Case No: 98-002883F