STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN RINDLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-4440F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

FINAL ORDER

This cause is before the undersigned on Petitioner's Petition for Attorney Fees, Costs and Expenses; on Respondent's Motion to Dismiss Respondent's [sic] Petition for Attorney Fees Costs, and Expenses; on Respondent's Response to Petition for Attorney Fees Costs and Expenses; and on Petitioner's Reply to Department's Response.

1. This cause arises under the Florida Equal Access to Justice Act. Section 57.111, Florida Statutes. That statute allows the award of attorney's fees and costs (but not expenses as also requested by petitioner) to a small business party who prevails in a proceeding initiated by the State.

   
   

2. The Petition for Attorney Fees, Costs and Expenses filed in this cause seeks reimbursement for expenditures by Respondent in defending certain prosecutions initiated by petitioner; specifically DOAH Case Nos. 84-2317; 84-2556, and 84-0349. The Petition further alleges that Petitioner does not request an evidentiary hearing in this matter. Although Section 57.111(4)(b); Florida Statutes, requires that the attorney for the prevailing small business party submit an itemized affidavit revealing the nature and the extent of the services rendered by the attorney as well as the costs incurred in the proceeding no such affidavit accompanies the Petition filed in this cause. Rather, the only mention of the monies sought by Petitioner appears on an undated unsigned, and unnotarized page entitled

   "Costs, Expenses and Attorney's Fees", which reads in its entirety:

   To date I have paid in excess of approximately Ninety Thousand Dollars (90,000.00) in costs, expenses and attorney's fees in the preparation and defense of Complaints 83-3976: 84-0349: 84-2317 and

   84-2556.

   
   

   Although mentioned in that general statement, the Petition filed herein does not request reimbursement of costs and fees for the defense of DOAH Case No. 83-3976.

   
   

3. Respondent's motion to Dismiss raises two bases for dismissal of this action, each of which is jurisdictional. In an apparent abundance of caution, Respondent includes allegations as to DOAH Case No. 83-3976 since it is mentioned in the record in this cause although it is not included in the petition filed herein. That approach will be followed in this Final Order.

   
   

4. Section 57.111(6)(b); Florida Statutes; provide that: "This section only applies to actions initiated by state agencies after July 1, 1984.

   
   

5. Respondent argues that the Petition herein should be dismissed because all of the actions were initiated prior to July 1, 1984. The facts necessary to determine the merits of this argument are not subject to dispute since they involve dates contained within the Division of Administrative Hearings case files in the underlying proceedings. Section 90.202(12); Florida Statutes. The records of the Division of Administrative Hearings reveal the following as to the dates on which each action was initiated:

   
   

   1. As to DOAH Case No. 83-3976, the Admini- strative Complaint is dated December 5, 1983; the Election of Rights is dated December 13, 1983; and the Administrative Complaint and Election of Rights were filed with the Division of Administrative Hearings on December 21, 1983.

      
      

   2. As to DOAH Case No. 84-0349; the Admini- strative Complaint is dated January 10, 1984; the Election of Rights is dated January 17, 1984; and the Administrative Complaint and Election of Rights were filed with the Division of Administrative Hearings on January 27, 1984.

      
      

   3. As to DOAH Case No. 84-2317; the Admini- strative Complaint is dated June 20, 1984; the election of rights dated June 25, 1984; and the administrative Complaint and Election of Rights were filed with the Division of Administrative Hearings on June 28, 1984.

      
      

   4. As to DOAH Case No. 84-2556; the Admini- strative Complaint is dated June 13, 1984; the Election of Rights is dated July 10,1984; and the Administrative Complaint and Election of Rights were filed with the Division of Administrative Hearings on July 17, 1984.

6. Clearly, DOAH Case Nos. 83-3976, 84-0349, and 84-2317

were initiated by Respondent prior to July 1, 1984, the effective date of the Florida Equal Access to Justice Act. Although the Administrative Complaint in DOAH Case No. 84-2556 was issued prior to the effective date of the Act, the Election of Rights was not signed and that cause was not transmitted to the Division of Administrative Hearings until after the effective date of the Act. The date on which the Election of Rights and Administrative Complaint were served on Petitioner is not reflected in the file of the Division of Administrative Hearings. It is not necessary, however, to determine whether the action is initiated by the issuance of an Administrative Complaint, by the service on a licensee of that Administrative Complaint together with an Election of Rights form by the signing of the Election of Rights form or by the transmittal of the Administrative Complaint and Election of Rights form to the Division of Administrative Hearings, for the reason that Petitioner's request for reimbursement of costs and fees in DOAH Case No. 84-2556 must be denied based upon the second ground raised in Respondent's Motion to Dismiss.

1. Respondent's second argument is that the Petition in this cause must be dismissed as to DOAH Case Nos. 84-2317 and 84-2556 because the Petition was not filed within the time permitted by law. Section 57.111(4)(b)2.; Florida statutes; provides that:

   The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party. Section 57.111(3)(c), Florida statutes; provides that a small business party becomes a prevailing small business party when inter alias the involved state agency voluntarily dismisses its complaint. By Order entered November 20, 1984; the joint motion to consolidate DOAH

   Case Nos. 84-2317 and 84-2556 was granted. On May 21, 1985, Respondent filed its Notice of Voluntary Dismissal in DOAH Case Nos. 84-2317 and 84-2556. Petitioner did not file his Petition in this cause until December 23, 1985; well beyond the 60-day time period allowed by statute. Accordingly no attorneys fees and costs can be awarded in reference to DOAH Case Nos. 84-2713 and

   84-2556 since Petitioner did not so request timely.

   
   

2. Since the two grounds raised by Respondent in its Motion to Dismiss in this cause are both correct and jurisdictional allowing Petitioner to amend his petition for attorneys fees and costs to comply with Section 57.111, Florida Statutes, would be useless. There are no allegations Petitioner can make which would change the fact that the prosecutions against him were initiated prior to the effective date of the Florida Equal Access to Justice Act and/or that his Petition for Attorney Fees Costs and Expenses was filed after the statutory time period for filing such a petition had elapsed. It is, therefore

ORDERED that Respondent's Motion to Dismiss be and the same is hereby granted. It is further

ORDERED that the Petition for Attorney Fees, Costs and Expenses filed in this cause be and the same is hereby dismissed with prejudice.

DONE and ORDERED this 11th day of March, 1986, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986.

COPIES FURNISHED:

Julie Gallagher, Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Stephen I. Mechanic, Esquire 2915 Southwest 27th Avenue Coconut Grove, Florida 33133

Allan N. Glaser Esquire Penthouse Suite

11077 Biscayne Boulevard Post Office Box 61-9002 Miami Florida 33261-9002

Fred Varn Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 85-004440F

Orders for Case No: 85-004440F