STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1343F

) SUNRISE COMMUNITY, INC., )

)

Respondent. )

)

SUMMARY FINAL ORDER OF DISMISSAL

Counsel for the Department of Health and Rehabilitative Services (HRS), by motion dated November 6, 1992, seeks the imposition of sanctions against Respondent and its counsel as authorized by Section 120.57(1)(b)(5), Florida Statutes. Counsel's motion was referred by HRS's agency clerk on March 3, 1993, to the Division of Administrative Hearings (DOAH) for conduct of formal proceedings.

Section 120.57(1)(b)(5), Florida Statutes, provides:

All pleadings, motions, or other papers filed in the proceeding must be signed by a party, the party's attorney, or the party's qualified representative. The signature of a party, a party's attorney, or a party's qualified representative constitutes a certificate that he has read the pleading, motion, or other paper and that, to the best of his knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the hearing officer, upon

motion or his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

In paragraph 65, on page 22 of the recommended order, the following ruling was made by the undersigned regarding motions of HRS and an intervenor regarding the subject of sanctions.

The motions . . . sought the imposition of monetary sanctions and attorney fee awards. Inasmuch as it is impossible to rule upon each of the proposed findings of Petitioner for the reasons set forth in the appendix to this recommended order, the motions are, to some extent, mooted. The motions, to the extent they seek relief in the form of monetary sanctions or attorney fee awards, are denied at this time.

The present motion of HRS's counsel for sanctions and cost is apparently predicated upon the language contained on page 6 of the final order in DOAH Case No. 92-0342BID which reads as follows:

The issue of whether sanctions should be imposed may be raised in an independent proceeding at the Division of Administrative Hearings.

The final order was issued on September 30, 1992, adopting the findings of fact and conclusions of law set forth in the September 2, 1992 recommended order. Since the issuance of the recommended order and subsequent final order, the matter was appealed to the Third District Court of Appeal. These events occurred prior to the filing of the present Motion For Sanctions And Costs.

While the undersigned's previous denial of the motions for sanctions was not expansive, the denial of the requested relief was clear. In Department of Health and Rehabilitative Services v. S.G., 613 So.2d 1380, 1384 (1st DCA 1993), the court noted that an agency does not have the authority in issuing a final order to reject the hearing officer's conclusion of law with regard to an award pursuant to Section 120.57(1)(b)5, Florida Statutes. 1/

In view of the foregoing, the present motion of counsel for HRS for the imposition of sanctions pursuant to Section 120.57(1)(b)(5), Florida Statutes is denied and further proceedings in this case are dismissed.

The foregoing DONE and ORDERED in Tallahassee, Florida, this 11th day of May, 1990.

DON W. DAVIS

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 11th day of May, 1993

ENDNOTE

1/ Notably, the court terms the hearing officer's authority to administer sanctions under Section 120.57(1)(b)5, to be an "immediate responsibility" with the clear implication that such authority should be exercised during the pendency of the proceeding.

COPIES FURNISHED:

Robert L. Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Steven M. Weinger, Esq.

2650 SW 27th Avenue, 2nd Floor Miami, FL 33133

Ralph McMurphy, Esq.

HRS District III

1000 NE 16 Avenue, Bldg. H.

Gainesville, FL 32609

Emery Rosenbluth, Esq.

111 N. Orange Ave. Suite 900 Orlando, FL 32802-0285

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: 93-001343F

Orders for Case No: 93-001343F