STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DERICK PROCTOR, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0263F

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation by the parties, this cause was considered upon pleadings, stipulations, and the record of the underlying case, without a formal hearing before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas V. Infantino

Post Office Drawer 30 Winter Park, Florida 32790

For Respondent: Ralph J. McMurphy

Department of Health and Rehabilitative Services

1000 North East 16th Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue in this cause is whether costs and attorney's fees are due Petitioner, hereinafter PROCTOR, from Respondent, hereinafter HRS, pursuant to Section 57.111, Florida Statutes, as a result of Division of Administrative Hearings Case Number 91-5963-BID, and, if so, the amount of costs and fees.

PRELIMINARY STATEMENT

This cause was initiated by the filing of PROCTOR's Petition for Costs and Attorney's Fees with the Clerk of the Division of Administrative Hearings on January 25, 1993.

HRS responded with a motion to dismiss the petition. Both parties subsequently filed motions for a summary final order. These motions were denied by order of April 22, 1993. That order also established that only those issues disputed in HRS' motion to dismiss would be considered in this proceeding, as all other issues had been waived pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035 Florida Administrative Code, which statute and rule specify how issues in these proceedings are framed.

A formal final hearing was noticed for June 14, 1993.

The parties submitted a Joint Stipulation dated May 20, 1993, agreeing to the cancellation of the scheduled formal hearing and resolution of their dispute upon the basis of the stipulation and the record in Case Number 91-5963BID. Official recognition has been taken of the portions of the record therein and of the record of the appellate review which were attached to the January 25, 1993 fee and costs petition.

FINDINGS OF FACT

1. The petition for fees and costs herein is brought exclusively under Section 57.111, Florida Statutes, and relates back to a bid protest wherein PROCTOR and TCC #3 LTD., INC., hereafter TCC, were the only bidders on HRS lease

   590.236. PROCTOR was the protestant/Petitioner and TCC was the apparent successful bidder/Intervenor in Derick Proctor v. Department of Health and Rehabilitative Services, DOAH Case No. 91-5963BID.

   
   

2. HRS' Invitation to Bid (ITB) for lease 590:236 required bidders to submit evidence of control of the property being offered, including the parking areas. Evidence of control could take the form of a deed for the property, an option to purchase the property, or a lease or option to lease showing a right to sublease.

   
   

3. TCC did not submit a document labelled "deed," "option to purchase," "lease," or "option to lease" with its bid. TCC submitted as its evidence of control a contract for sale and purchase of the property with Hernando Plaza, Ltd., executed by Edward M. Strawgate and Harold Brown representing themselves to be general partners of the limited partnership.

   
   

4. At all times material, the actual record title of the property submitted by TCC for the bid was in the Victor and Lillian Brown Foundation.

   
   

5. At the times of the bid opening, evaluation, and August 27, 1991 notice of intended award, HRS had no reliable information as to what entity actually owned the property offered by TCC, and TCC had not disclosed to HRS that its contract to purchase the property was with an entity other than the record owner. Up to then, at least, Hernando Plaza, Ltd. had represented itself to TCC as being the owner of the property.

   
   

6. The ITB did not require an abstract of title to be submitted with the bid. HRS normally does not require an abstract from successful bidders, although the ITB contained provisions for future disclosures from successful bidders. Absent some reason to "go behind" facial evidence of control, HRS' ITB attempted at the time to protect HRS by requiring successful bidders to post an irrevocable letter of credit to be forfeited in the event a successful bidder could not perform and for future disclosures concerning the chain of title.

   (See the recommended order in the underlying case).

   
   

7. HRS accepted the contract to purchase the property from Hernando Plaza, Ltd. as TCC's required evidence of control, believing it to constitute an option to purchase. (See Findings of Fact 15-17 infra, this final order).

8. On August 27, 1991, PROCTOR received from HRS a notice of intent to award the bid to TCC. This notice constituted the "window" for protests, if any, to be filed. PROCTOR then timely filed a notice of intent to protest and a formal written protest of the award to TCC. The filing of this protest resulted in an automatic suspension of the bid solicitation and contract award process and referral of the matter to the Division of Administrative Hearings, pursuant to Section 120.53(5)(c), Florida Statutes. This protest formed the basis of the underlying bid case, DOAH Case No. 91-5963BID.

   
   

9. No later than the time of the Prehearing Order of September 23, 1991 in Case No. 91-5963BID, the law firm of Gibbs and Rudzik had made known to the hearing officer and counsel for both PROCTOR and HRS its retention as counsel for TCC.

   
   

10. TCC moved for leave to intervene in a motion filed September 30, 1991, which was granted in an order of October 4, 1991.

    
    

11. In a letter of October 10, 1991, counsel for PROCTOR made counsel for HRS aware of a question of whether TCC could obtain good title to the property.

    
    

12. Counsel for PROCTOR proposed in a letter of October 14, 1991 to counsel for HRS that HRS reject both PROCTOR's and TCC's bids and rebid the lease, but this letter was primarily devoted to determining if HRS wished to interpose a new defense that PROCTOR's bid was unresponsive. In the instant fees and costs case, PROCTOR relies on its October 14, 1991 letter as the point from which HRS should have acted to avoid incurring attorney's fees and costs. After the receipt of the two letters, HRS did not reject both bids and rebid the contract but proceeded to formal hearing on October 30, 1991.

    
    

13. PROCTOR and HRS share the mutual impression that had HRS accepted PROCTOR's proposal to reject both bids, HRS would have to have allowed TCC an opportunity to protest that decision.

    
    

14. At the final hearing in Case No. 91-5963BID, evidence was offered that Hernando Plaza, Ltd. had a conditional option to purchase the property from the record title owner, the Brown Foundation. However, it was not established at the hearing that the conditions of the option had been fulfilled or that TCC or Hernando Plaza, Ltd. could otherwise gain good title to the property through a valid option.

    
    

15. It was concluded as a matter of law in Case No. 91-5963BID, that on its face, the ITB stated that control could be evidenced merely by attachment of an "option to purchase," that the ITB stated no further requirements concerning the internal provisions of the option to purchase, and that TCC's conditional contract for purchase constituted a conditional option to purchase. The conditions of the option to purchase and the chain of title, among myriad other matters were subjects of proof at the formal hearing. The conditions of the option to purchase and various complicated real property concepts arising from recorded and unrecorded parts of the chain of title constituted the thrust of the recommended order's assessment that TCC's "control" was speculative only.

    It is here noted that the totality of the "chain" of title might have been unavailable even by "abstract" due to the lack of recordation of some documents.

    
    

16. The lengthy formal hearing adduced evidence concerning the factual issue of whether or not the conditional option to purchase was between TCC and an entity which had such a sufficiently unequivocal interest in the proposed property that it could convey title to TCC in time for TCC to fulfill its

    obligations under its proposed lease to HRS. There is no evidence that HRS knew of these problems on August 27, 1991, when it gave notice of its intent to award the bid to TCC.

    
    

17. Hernando Plaza, Ltd. was the entity with which TCC had contracted. At formal hearing, TCC relied on the legal concept that all interests in the property had merged in the non-title holder, Hernando Plaza, Ltd. This concept, together with recorded and unrecorded elements in the chain of title which were presented at formal hearing, were determined in the recommended order to be too "speculative" on the issue of TCC's control. However, it was also found, upon evidence submitted at formal hearing, that TCC's bid contained no other material deviations from the requirements of the ITB, that the signator of TCC's bid had sufficient status to submit the bid for the TCC corporation, and that TCC's signator could not submit the bid as an agent of the owners of the real property. TCC and its bid signator had never purported to have submitted the bid on behalf of the owners of the real property. (See the recommended order of the underlying bid case.) These issues were raised by PROCTOR and they addressed more than just the facial compliance of TCC's original bid documents which was all HRS had to consider when it made its initial decision in favor of TCC and against PROCTOR.

    
    

18. However, the recommended order found HRS to have materially deviated in a number of ways from the bid process in its initial evaluation of PROCTOR's bid, not the least of which was determining that PROCTOR had complied with the ITB requirements for demonstrating control. All such evaluation flaws had been committed by HRS in favor of PROCTOR.

    
    

19. Both TCC's and PROCTOR's bids were ultimately found to be unresponsive in the recommended order entered on December 20, 1991. The recommended order also found both had standing to be involved in the bid protest and formal hearing. The recommended order recommended rejecting both bids and readvertising the ITB.

    
    

20. The Final Order of HRS entered on January 20, 1992 dismissed PROCTOR's protest on the basis that he lacked standing to protest, as his bid was unresponsive, and awarded the bid to TCC. HRS did not give PROCTOR notice that his bid was not responsive until it issued its Final Order.

    
    

21. The Final Order of HRS was appealed to the First District Court of Appeals by PROCTOR.

    
    

22. The First District Court of Appeals entered an order on June 22, 1992 finding PROCTOR had standing and remanding the case back to HRS for the purpose of a decision of the issue of whether TCC's bid was also unresponsive.

    
    

23. On July 27, 1992, HRS entered its Amended Final Order determining both bids to be unresponsive and that the lease should be relet for bids.

    
    

24. The First District Court of Appeals affirmed the Amended Final Order of HRS in a per curiam opinion without discussion on October 13, 1992. HRS did not reject both bids and rebid the contract until after this per curiam opinion.

    
    

25. No motion for rehearing was filed with respect to either of the First District Court of Appeals' orders entered June 22 or October 13, 1992, nor was any notice to invoke the discretionary jurisdiction of the Supreme Court filed. PROCTOR did file a motion for rehearing solely on the court's denial of PROCTOR's motion for appellate fees.

26. Mandate was issued by the Clerk of the First District Court of Appeals on December 3, 1992.

    
    

27. HRS entered an Order Directing Release of Bid Protest Cost Bond on December 18, 1992, in which HRS stated:

    
    

    Petitioner, Derick Proctor, has prevailed in the above styled bid protest.

    
    

28. Petitioner's domicile and principal place of business is Vero Beach, Florida. Petitioner has one employee. Petitioner is a sole proprietorship. Petitioner's net worth does not exceed $2,000,000.00.

    
    

29. HRS was not a nominal party in the underlying bid case.

    
    

30. HRS did not initially challenge PROCTOR's "small business party" status in this instant fees and costs proceeding. Therefore, that allegation of the fees and costs petition is not at issue. Also, Petitioner's "small business party" status is now stipulated to exist.

    
    

31. The parties have stipulated that the maximum statutory fee is

    $15,000.00 and that $15,000.00 is a reasonable fee if an award of attorney's fees is due.

    
    

32. HRS has not protested or objected to the amount of costs claimed,

    $411.25, if costs are due.

    
    

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 57.111 and 120.57(1), Florida Statutes. The parties have stipulated that fees are sought only as provided in Section 57.111, Florida Statutes, and no under other fee statute.

    
    

34. Section 57.111(4)(a), Florida Statutes, provides:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the

    agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

35. The burden is on an applicant for attorney's fees and costs to show initially that the applicant qualifies for an award of fees and costs by a preponderance of the evidence. If the applicant succeeds in this showing, the burden then shifts to the agency to demonstrate that it was substantially justified in prosecuting the administrative complaint. See, Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715, 717 (Fla. 1st DCA 1989).

36. PROCTOR was stipulated to be a small business party as defined in Section 57.111(3)(d), Florida Statutes.

    
    

37. HRS' prior motions suggested that PROCTOR had not "prevailed" because he did not ultimately get the HRS contract. That argument has apparently been abandoned in HRS' proposed final order. However, in an abundance of caution, it is here specifically concluded that where a bid challenge ultimately results in the protestant preventing another bidder from being awarded the bid and gets another chance to bid competitively, the protestant has "prevailed." This conclusion was stated as a "given" in the District Court of Appeals' June 22, 1992 order of remand of the underlying bid case.

    
    

38. HRS, by its prior motions and once again in its proposed final order, contended that HRS did not initiate the underlying action and therefore PROCTOR may not prevail on the instant fees and costs petition. HRS further submitted that for HRS to have initiated the underlying action, HRS would have to: (1) have filed the first pleading in a state or federal court; (2) requested an administrative hearing under Chapter 120; or (3) been required by law or rule to advise PROCTOR of a clear point of entry after a recognizable event in an investigatory or other free-form proceeding of HRS and that a bid protest does not qualify as either of those types of proceedings. This argument is rejected again as it was in a prior order herein. Pursuant to Section 120.53(5), Florida Statutes, the agency was required to advise PROCTOR of a clear point of entry to challenge its bid award decision, and that clear point of entry falls within the purview of Section 57.111(3)(b)3, Florida Statutes. See, also, F. & F. Equipment Inc. v. Dept. of General Services DOAH Cast No. 91-4951F (1992); Professional Testing Service Inc. v. Dept. of Professional Regulation, 14

    F.A.L.R. 2360 (1992); and Global Marketing of North Carolina v. Dept. of Environmental Regulation, 13 F.A.L.R. 3440 (1991).

    
    

39. Section 57.111(4)(b)2, Florida Statutes, requires that an application for an award of attorney's fees be made within sixty days of the date the applicant becomes a prevailing small business party. HRS has argued that PROCTOR missed that timely filing date for his fees and costs petition. This argument was rejected by prior order of the undersigned. However, in its proposed final order, HRS makes a more complete argument on this issue that the undersigned now finds persuasive, in light of having had an opportunity to fully review the Florida Rules of Appellate Procedure and the final order of dismissal in Eager and Calusa Camp Resort, Inc. v. Florida Keys Aqueduct Authority, DOAH Case No. 91-6276F entered January 6, 1992.

    
    

40. HRS argues that under Section 57.111(3)(c)1, Florida Statutes, PROCTOR became a prevailing small business party, if at all, no later than the time for further appeal or rehearing of the October 13, 1992 opinion of the First District Court of Appeals affirming the Amended Final Order of HRS expired without the filing of a notice to invoke the discretionary jurisdiction of the Supreme Court or a motion for rehearing on the merits. The only cases cited in PROCTOR's proposed final order in support of timeliness of its January 25, 1992 fees and costs petition are Hardy v. Department of Professional Regulation DOAH Cast No. 89-0055F (September 22, 1989) and Eager v. Florida Keys Aqueduct Authority, 605 So.2d 883 (Fla. 3rd DCA 1992), the appellate decision which overturned the final order of dismissal in DOAH Case No. 91-6276F, supra.

41. The Hardy case is not helpful in resolving the timeliness issue presented here. Although the court in Eager v. Florida Keys Aqueduct Authority, 605 So.2d 883 (Fla. 3rd DCA 1992) [hereafter Eager #3] speaks of the issuance of "mandate" as the trigger point for counting the sixty days for filing a petition for attorney's fees and costs under Section 57.111, Florida Statutes, that case does not hold specifically that a party does not become a prevailing small business party until mandate is issued. The real issue in that case was whether a fees and costs petitioner is entitled to five extra days for mailing time, as evidenced both by the District Court opinion and by the appealed final order of Hearing Officer Arrington in DOAH Case No. 91-6276F entered January 6, 1992 [hereafter Eager #2]. Although Eager #2 discusses a "mandate" and "final judgment" as being synonymous, the cases cited therein stand for the proposition that attempts to invoke the discretionary jurisdiction of a higher court will not toll the finality of a lower court decision on the merits absent entry of a stay order. In Eager #3 , the District Court stated that it had filed an opinion on July 29, 1991. A copy of the mandate was received by counsel for the applicant for fees the very next day, July 30, 1991. If reference is made to the underlying appellate decision in Eager v. Florida Keys Aqueduct Authority,

    580 So.2d 771 (Fla. 3rd DCA 1991) rev. den. July 11, 1991; rev. den. 591 So.2d

    181 (Fla. 3d DCA 1991) [hereafter Eager #1], it can be seen that a motion for rehearing was filed in that case, delaying the effective date of the court's decision. The Eager #2 and Eager #3 decisions followed.

    
    

42. No motion for rehearing on the merits was filed in the bid case underlying PROCTOR's instant fees and costs petition. The motion for rehearing on a denial of appellate fees did not toll the finality of the District Court's October 13, 1992 order on the merits of this underlying bid case.

    
    

43. Another distinction between Eager #3 and the instant case is that the opinion in Eager #1 reversed the final order of the administrative agency. In the instant case, the decision of the First District Court of Appeals issued on October 13, 1992 affirmed HRS' Amended Final Order issued July 27, 1992. The mandate, when it was finally issued by the Clerk of the First District Court on December 3, 1992, was a form which did not require any further action by HRS or order HRS to do or pay anything.

    
    

44. Herein, there is no question that PROCTOR, as the sword-wielder in the underlying bid case and appellant thereof to the District Court, knew when each order of that court was entered and when each jurisdictional period ran. All jurisdictional periods for motions for rehearing or a petition for review by the Florida Supreme Court run from "rendition" of the District Court of Appeals order sought to be reviewed. The decision of the First District Court of Appeals became final on October 28, 1992, when the 15 days for filing a motion for rehearing expired without a motion for rehearing of the October 13, 1992 decision on the merits being filed. The time for seeking review by the Supreme Court expired on November 12, 1992 without a notice to invoke jurisdiction being filed. See, Rules 9.020(g) 9.120(b) 9.330(a), and Fla. App. Rules. The fact that mandate was delayed by PROCTOR's filing of a motion for rehearing of the order denying his motion for attorney's fees does not mean that the finality of the decision of the First District Court of Appeals affirming HRS' Amended Final Order, wherein PROCTOR "prevailed," was also delayed.

    
    

45. Section 57.111(4)(a)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)1. provides that, "A small business party is a 'prevailing small business party' when: a final judgment or order has been

    entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired." Rule 9.020(g) Fla. App. Rules defines the "rendition" (entry) of an order as the date it is filed with the clerk of the lower tribunal, in this case, the First District Court of Appeals.

    
    

46. PROCTOR's petition for attorney's fees and costs in this case was filed with the Division of Administrative Hearings on January 25, 1993, more than sixty days from October 28, 1992 and November 12, 1992, even when the five extra days for mailing are added. The petition for attorney's fees and costs herein is therefore untimely and the claim for fees must be dismissed.

    
    

47. However, since this instant fees and costs case has gone this far, in an abundance of caution, the remaining issue of whether or not HRS was "substantially justified" in the underlying bid case is here addressed briefly.

    
    

48. The determination whether an agency is substantially justified must be made on the basis of the facts as known or understood by the agency at the time the action was initiated. See, Section 57.111(3)(e), Florida Statutes; Department of Professional Regulation v. Toledo Realty, Inc., supra. Gentele v. Department of Professional Regulation, 513 So.2d 672 (Fla. 1st DCA 1987). The operative date herein is the time the underlying action was initiated, or August 27, 1991, when HRS notified PROCTOR that TCC was the apparent successful bidder.

    
    

49. On August 27, 1991, when HRS notified PROCTOR that the lease was to be awarded to TCC, HRS was unaware of the title defects ultimately resulting in TCC's bid being found unresponsive. In fact, TCC was also unaware of the problem because Hernando Plaza, Ltd. had represented itself as the owner and had entered into the contract with TCC as if it were the owner. HRS did not require in the ITB that bidders submit complete abstracts of title. All that was required was facially valid evidence of control, which TCC submitted. Those provisions of the standard ITB may be worth redrafting to prevent such cases in the future, but HRS was acting within the parameters of the existing ITB with regards to determining TCC to be a responsive and apparently successful bidder when HRS acted.

    
    

50. PROCTOR has contended herein that all HRS' decisions after PROCTOR notified HRS on October 14, 1991 of the potential inability of TCC to provide good title, should constitute grounds for an award of attorney's fees and costs under Section 57.111, Florida Statutes. However, unlike the federal Equal Access to Justice Act, 5 U.S.C. s.504, Section 57.111, Florida Statutes, does not specifically require that an agency litigate in good faith and cease prosecuting a case which ceases to be substantially justified. Florida's controlling organic law at Section 57.111(3)(e), Florida Statutes, provides only that, "a proceeding is substantially justified if it had a reasonable basis in law and fact at the time it was initiated. (Emphasis supplied.) Although many cases interpreting Section 57.111, Florida Statutes, rely upon cases arising under the federal act where they may be "harmonious," diligent search by the undersigned has not revealed that Florida has engrafted a "continued substantial justification" requirement upon the clearly contrary language of Florida's statute. In Florida, the trigger date of initiation of the proceedings has been held to "cut both ways." Specifically, see Pontigo v. Dept. of State, Division of Licensing DOAH Case No. 90-3861F (January 24, 1991), wherein Hearing Officer William R. Dorsey discussed the reasonableness of an agency's decision to terminate its license revocation action by an amended final order dismissing the

    administrative complaint with prejudice while the licensee was appealing his revocation in the appellate court. That case found such dismissal not to be an issue in a case brought pursuant to Section 57.111, Florida Statutes, saying:

    
    

    The statutory inquiry under Section 57.111 has a specific temporal limitation, a small business party applying for fees is not required to prove that the agency's prosecution lacked substantial justification throughout the whole period it was maintained by the agency. Instead, the inquiry is focused by Section 57.111(3)(e) on whether the agency's position had a reasonable basis in law and fact "at the time it was initiated by [the] state agency."

    
    

51. At best, HRS received a suggestion on October 14, 1991 of lack of title in TCC's potential grantor. This was two months after the initiation of the proceeding and only two weeks before formal hearing. It has not been established that HRS had evidence prior to formal hearing which, if unchanged at formal hearing, would reasonably indicate that TCC did not have the requisite control or would not complete all prerequisites to obtaining the necessary control of the property prior to the date specified for such control in the ITB. Therefore, HRS was substantially justified August 27, 1991 in declaring TCC the apparent successful bidder when TCC's bid submittal was responsive in all material respects on its face.

    
    

52. PROCTOR has also suggested, at least obliquely, that because HRS' bid evaluation erroneously determined PROCTOR to be a responsive bidder when in fact, PROCTOR's bid submittal was unresponsive on its face as found in the recommended order, and because HRS did not notify PROCTOR of PROCTOR's own unresponsiveness on August 27, 1991 or October 14, 1991, HRS is somehow liable for fees to PROCTOR. This situation is simply not what Section 57.111, Florida Statutes, was enacted to cover. The legal complexity of this case has been complicated by HRS' persistent confusion between the concepts of "PROCTOR's standing to protest the apparent bid award pursuant to Section 120.53(5), Florida Statutes," and "unresponsiveness of one or both bids upon which the protest is founded," and by PROCTOR's persistent confusion concerning the difference between the issue of "TCC's corporate officer's authority to sign and submit TCC's corporate bid based on TCC's conditional option to purchase the property from the record title holders" and the issue of "not establishing the requisite agency to sign and submit a bid on behalf of the real property title holders." (See, Findings of Fact 7, 15-17, 19, and 20-23 infra.) The underlying recommended order resolved all issues in TCC's favor except control of the real property. TCC's bid submittal was materially responsive on its face but was proven to be, in fact, unresponsive. PROCTOR's bid submittal was not even materially responsive on its face, but that situation ought not to subject HRS to liability for fees and costs to PROCTOR.

ORDERED

Upon the foregoing findings of fact and conclusions of law, it is,

ORDERED and ADJUDGED that the Petition for Attorney's Fees and Costs filed herein by Petitioner is hereby DENIED and this case is DISMISSED.

ENTERED this 3rd day of September, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-263F

The following constitute specific rulings, pursuant to S120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF).

PROCTOR's PFOF:

1. Accepted.

2. Accepted except for conclusions of law.

3. Sentences 1-3 are accepted. Sentences 4-5 are rejected as not supported by the record. Even if it could be shown that the October 14, 1991 letter established that TCC did not have the requisite interest, same is not dispositive since HRS received the letter after the time specified in Section 57.111(3)(e), Florida Statutes.

4. Sentence 1 is accepted as a mixed question of fact and law. Sentence 2 is rejected as mere persuasive argument and an incorrect conclusion of law.

5. Accepted.

6. Accepted but not dispositive.

7-8 Rejected as mere persuasive argument and an erroneous conclusion of law.

9 Sentence 1 is accepted. Sentence 2 is rejected as not supported by the record, as mere persuasive argument, and as an erroneous conclusion of law.

HRS's PFOF:

1-24 Accepted. as modified.

COPIES FURNISHED:

Thomas V. Infantino Post Office Drawer 30

Winter Park, Florida 32790

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Ralph J. McMurphy, Esquire Department of Health and

Rehabilitative Services 1000 North East 16th Avenue Gainesville, Florida 332609

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.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DERICK PROCTOR NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 93-3045

DOAH CASE NO. 93-0263F

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Appellee.

/ Opinion filed September 15, 1994.

An appeal from an order of the Division of Administrative Hearings. Thomas V. Infantino of Infantino and Berman, Winter Park, for Appellant. Ralph J. McMurphy, Ocala, for Appellee.

PER CURIAM.

AFFIRMED.

ALLEN, WEBSTER and DAVIS, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings.

WHEREAS, in that certain cause filed in this Court styled: DERICK PROCTOR

v. Case No. 93-3045

DEPARTMENT OF HEALTH AND Your Case No. 93-263F REHABILITATIVE SERVICES

The attached opinion was rendered on September 15, 1994,

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 3rd day of October, 1994.

Karen Roberts, Deputy

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 93-000263F

Orders for Case No: 93-000263F