STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

L. T., )

)

Petitioner, )

)

vs. ) CASE NO. 92-4789F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

This matter comes on for review of the Petitioner's Motion for Award of Attorney's Fees and Costs filed in this case, the Petitioner's amended motion, and the Respondent's response.

APPEARANCES

For Petitioner: Michael C. Tice, Esquire

2149 First Street

Fort Myers, Florida 33901

For Respondent: Anthony N. DeLuccia, Esquire

District Legal Counsel Post Office Box 06085

Tallahassee, Florida 32306 STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to an award of an award of attorney's fees and costs related to the Respondent's prosecution of DOAH Case No. 92- 0252C.

PRELIMINARY STATEMENT

In November 1991, the Department of Health and Rehabilitative Services informed L. T. that her request to amend or expunge a proposed confirmed report of child abuse was denied. L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. A hearing was held and the Hearing Officer subsequently recommended that the abuse report be expunged.

L. T. thereafter filed a Motion for Award of Attorney's Fees and Costs, and a certified statement indicating the amount of such fees. The motion failed to identify any statutory authority under which an award of fees could be made.

By Order filed December 3, 1992, the Hearing Officer directed the Petitioner to set forth the statutory authority and directed the Respondent to

file a response to the motion. The Petitioner filed an Amended Motion for Attorney's Fees and Costs, which identifies Section 120.68(8), Florida Statutes, as providing the Hearing Officer with authority to award fees ion this case.

The Respondent filed a response which addresses the authority of the Hearing Officer to award fees under the provisions of Sections 57.111 and 120.59(6), Florida Statutes. Based upon the Recommended Order issued in the underlying case, the motions for fees and the response filed, the following Findings of Fact are made.

FINDINGS OF FACT

1. The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver.

   
   

2. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females.

   
   

3. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place.

   
   

4. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory.

   
   

5. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job.

   
   

6. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed."

   L. T. was apparently notified of the matter and requested that the report be expunged.

   
   

7. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly."

   
   

8. Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding.

9. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. A hearing officer may award fees and costs only where such is specifically authorized by statute. The Petitioner cites to Section 120.68(8), Florida Statutes, as authorizing an award of fees and costs at this time. The cited section provides for judicial review of agency action and does not authorize an award of fees at this juncture.

    
    

12. An award of fees may be made against a nonprevailing adverse party which has been determined by the Hearing Officer to have participated in the proceeding for an improper purpose under the provisions of Section 120.59(6), Florida Statutes, however, such an award is not applicable where the prevailing or nonprevailing party is an agency of the state.

    
    

13. A Hearing Officer may also award fees under the provisions of Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act. However the cited section is inapplicable to the Petitioner in this case.

    
    

14. Additionally, fees may be awarded under the provisions of Section 120.57(1)(b)5, Florida Statutes, for the filing of improper or frivolous pleadings. There is no assertion that the pleadings in this matter are improper or frivolous.

    
    

15. The Petitioner's motion states that the findings of the Hearing Officer "in this case reveal that the agency's investigation was totally flawed and that, in fact, other parties should have been charged with abuse in this case."

17. The Recommended Order in the underlying case found that "[g]iven the events of the afternoon,...L. T. acted appropriately in determining the whereabouts of all residents." The Recommended Order concludes that "[t]he evidence fails to establish that the victim was abused due to neglect by L. T. Given the circumstances, L. T. acted reasonably in locating the children and attempting to take control of the situation." There is no finding or conclusion that the DHRS investigation was flawed or that other persons should have been prosecuted.

FINAL ORDER

Based on the foregoing, the request of L. T. for an award of fees and costs is DENIED

DONE and ORDERED this 5th day of March, 1993, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 5th day of March, 1993.

COPIES FURNISHED:

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Michael C. Tice, Esq. 2149 First Street

Fort Myers, Florida 33901

Anthony DeLuccia, Jr., Esq. Department of Health and

Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906

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, 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: 92-004789F

Orders for Case No: 92-004789F