STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. J., )

   )

   Petitioner, )

   )

   vs. ) Case No. 98-4951F

   ) DEPARTMENT OF CHILDREN AND FAMILY ) SERVICES, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   This matter came before the undersigned on Respondent’s Motion for Award Of Attorney’s Fees and Costs, opposed by counsel for the Department of Children and Family Services. No formal hearing was held in this matter as formal hearing was not requested by either party, and the issues were decided based on the pleadings filed.

   APPEARANCES

   
   

   For Petitioner: Jack E. Farley, Esquire

   Department of Children and Family Services

   District 14 Legal Office 4720 Old Highway 37

   Lakeland, Florida 33813-2030

   
   

   For Respondent: Charles R. Mayer, Esquire

   Post Office Box 267

   Highland City, Florida 33864 STATEMENT OF THE ISSUE

   The issue for consideration in this case is whether Respondent is entitled to an award of attorneys’ fees and costs

   due to her successful challenge to the Department’s

   classification as confirmed of a report of exploitation listing her as perpetrator.

   PRELIMINARY MATTERS

   
   

   On October 9, 1998, the undersigned entered a Recommended Order in DOAH Case No. 98-0411C, recommending expungement of an FPSS Report which reflected Respondent as perpetrator of exploitation of her elderly and disabled father. Thereafter, on November 4, 1998, counsel for Respondent filed a Motion For Award Of Attorney’s Fees And Costs, citing Section 120.595, Florida Statutes as authority. By Response dated November 9, 1998, counsel for the Department opposed the motion.

   No action was taken on the motion at that time by the undersigned because the Department had not yet entered its Final Order on the merits. The Final Order, approving and adopting the Recommended Order and ordering the subject abuse report be amended/expunged, was entered by the Department on December 11, 1998.

   FINDINGS OF FACT

   
   

   1. After a full evidentiary hearing on the merits, the undersigned, on October 9, 1998, entered a Recommended Order in DOAH Case No. 98-0411C, recommending that FPSS Report of exploitation No. 97-075800, reflecting Respondent as perpetrator and C.B. as victim, be classified as unfounded and expunged from the Department records.

   2. The evidence introduced by the Department at the

      hearing, standing alone, would clearly raise a question in the mind of an impartial reviewer, as to whether Respondent, who had been given unlimited power of attorney by her father, had improperly converted his assets to her own use. However, Respondent presented evidence at hearing which satisfactorily answered this question, and the undersigned concluded that the Department had not established exploitation by the Respondent by a preponderance of the evidence. The Department subsequently concurred and the offending report was reclassified and expunged.

      CONCLUSIONS OF LAW

      
      

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

   4. Claimant here seeks reimbursement for attorney’s fees and costs relative to her defense against the Agency’s attempt to classify the incident FPSS report pertaining to her activities as confirmed. She was successful in her effort and now cites Section 120.595 as authority to satisfy her claim.

   5. Section 120.595, Florida Statutes, provides for an award of attorney’s fees where the non-prevailing adverse party has been determined by the Administrative Law Judge to have participated in the proceeding for an improper purpose. As defined in subsection (1)(e) of that provision, the term “improper purpose” means participation in a proceeding pursuant to Section 120.57(1), Florida Statutes, proceeding to harass or

      to cause unnecessary delay or for frivolous purpose.

      
      

   6. Section 415.104, Florida Statutes, requires the Department to investigate all reports of exploitation and to classify the report as proposed confirmed or unfounded, or to close the report without classification. That is exactly what the Department did under the terms of the statute. The mere fact that the Department did not prove, by a preponderance of evidence presented at a formal hearing, that the suspected exploitation too place, does not mean that it performed its initial action for an improper purpose.

   7. In his letter of transmittal of his Motion For Attorney’s Fees, counsel for Respondent refers to that portion of Section 120.595(1)(a) which states refers to “other provisions allowing the award of fees or costs in administrative proceedings. Counsel admits he cannot find such “other provisions,” and there are none save those provided for in Section 57.111, Florida Statutes, and Section 120.569(1)(c), Florida Statutes, neither of which is applicable here. It is, therefore,

ORDERED THAT:

Respondent B. J.’s Motion For Award of Attorney’s Fees is hereby denied.

DONE AND ORDERED this 24th day of December, 1998, in Tallahassee, Leon County, Florida.

_ ARNOLD H. POLLOCK

COPIES FURNISHED:

Jack E. Farley, Esquire District 14 Legal Office

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1998.

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

Charles R. Mayer, Esquire Post Office Box 267

Highland City, Florida 33846

Gregory D. Venz, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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 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: 98-004951F

Orders for Case No: 98-004951F