D. P., )
)
Petitioner, )
)
vs. ) CASE NO. 93-0463F
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a final hearing was held in this case on Tuesday, July 27, 1993, by telephone conference call before James E. Bradwell, a duly designated hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: W. D. P. pro se (at address of record) For Respondent: Kathleen R. Harvey, Esquire
HRS District V Legal Office
11351 Ulmerton Road, Suite 100
Largo, Florida 34648-1630 STATEMENT OF THE ISSUES
Whether Petitioner, W. D. P., is entitled to an award of attorney's fees and costs as a prevailing party; and, if so, in what amount.
PRELIMINARY STATEMENT
By its petition filed January 25, 1993, Petitioner filed a motion to tax costs and attorney's fees with the Division of Administrative Hearings. The motion alleged that Petitioner is entitled to fees and costs pursuant to Section 57.111, Florida Statutes.
Petitioner's claim for entitlement stems from another administrative action: DOAH Case Number 91-5892C, an administrative challenge of a proposed confirmed abuse report in which Petitioner was named as the alleged perpetrator. That case was reclassified based on newly discovered evidence which came to light during a criminal investigation wherein Petitioner was the subject of criminal charges involving the same facts that were in the abuse report. Based on that newly discovered evidence, Petitioner was advised on approximately May 13, 1992 that the criminal prosecution filed against him was nolle prosequi. Thereafter, within 30 days, Respondent advised Petitioner that it was seeking to relinquish jurisdiction in that case based on its internal investigation and reclassification of the subject report as being "closed
without classification". Based thereon, a formal hearing was not held and jurisdiction was relinquished to Respondent for the entry of a Final Order commensurate with its reclassification of the abuse report.
Official recognition was taken of the record in DOAH Case Number 91-5892C.
At the hearing, Petitioner testified on his own bahalf and Respondent cross examined him. Respondent's counsel made legal argument urging dismissal of the petition which was taken under advisement. Based on the order entered herein, a ruling on the motion is unnecessary.
After the hearing, the parties filed proposed final orders and argument which were considered in preparation of this Order.
FINDINGS OF FACT
Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made:
Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991).
Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held.
Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors.
Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992.
On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed.
Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation.
Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual
underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 57.111, Florida Statutes.
Section 57.111, Florida Statutes, provides in pertinent part that: (3)(c) a small business party is a "prevailing small business party" when:
a final judgement or order has been entered in favor of the small business party and such judgement has not been
reversed . . .:
a settlement has been obtained by the small business party which is favorable to the small business party on the majority of the issues which such party raised during the course of the proceeding; or
the state agency has sought a voluntary dismissal of its complaint.
(d) the term "small business party" means:
(1)(a) a sole proprietor of an unincorporated business, including a professional practice, whose principle office is in this state, which is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not
more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or
(b) a partnership or corporation, including a professional practice, which has its principal office in this state and has at
the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth not more than $2 million; . . .
* * *
(e) a proceeding is "substantially justified" if it had a reasonable basis in law and in
fact at the time it was initiated by a state agency.
At the time that this matter was initiated by Respondent, a state agency, there was a sufficient basis to go forward and the agency's actions were substantially justified.
Petitioner failed to establish "small business" status as defined by Section 57.111, Florida Statutes. Consequently, Petitioner's success at having a record amended or expunged would not be the basis for recovery of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. Moreover, Respondent was substantially justified when it initiated the action against Petitioner. It is of no consequence that Respondent later reclassified the
