STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

B. R., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2461F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on November 3, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Donna Szczebak O'Neil

301 East Commercial Boulevard Fort Lauderdale, Florida 33334

For Respondent: Bonnie G. Katz

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner is entitled to recover attorneys fees and costs.

PRELIMINARY STATEMENT

This case began on May 3, 1993, when the Petitioner filed a petition for attorney's fees. Such petition alleged that based upon a recommended order entered on March 2, 1993, and a final order entered on April 15, 1993, that Petitioner was a prevailing party and entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes. Additionally, the petition set forth the hours expended by Petitioner's attorney in connection with the case and included affidavits valuing such hours. Finally, costs in the amount of

$1,203.46 have been sought making the total claimed $8,483.46.

The Respondent, Department of Health and Rehabilitative Services (Department), filed a response to the petition in the form of a motion to dismiss and claimed that Petitioner had not alleged sufficient facts to show an entitlement to fees and costs and had not complied with Rule 60Q-2.035, Florida Administrative Code.

Thereafter, the Petitioner filed a motion to amend the petition for attorney's fees and such amended petition now stands as substituted for the original (order entered June 10, 1993). The amended petition included allegations that Petitioner is a sole proprietor of a small business, Rona's Retirement Home; that Petitioner has one full-time employee; that the agency's actions were substantially unjustified; that no circumstances would make the award of fees and costs unjust; and that the Department was not merely a nominal party.

The Department filed a second motion to dismiss and a response to the amended petition on July 30, 1993. Such motion claimed Petitioner waived any right to fees by not pleading same in the underlying action; that Petitioner is not a small business party within the meaning of Section 57.111, Florida Statutes; that any actions taken against Petitioner had been in her individual capacity not against Petitioner's business; that the fees and costs claimed are unreasonable; that the agency's actions were substantially justified; and that there are circumstances that make an award unjust.

At the hearing, the parties stipulated to the use of affidavits regarding attorney's fees. The affidavits of the following have been considered: Carmen Frick (filed November 3, 1993); Louis Giovachino (filed November 3, 1993); Caridad Tahina Planas (filed November 3, 1993); and Rudolph M. Dilascio (filed May 3, 1993). Petitioner testified in her own behalf as did her attorney for the purpose of verifying the factual allegations of the amended petition.

Official recognition has been taken of the recommended order and final order entered in the underlying case (DOAH case no. 92- 1889C). The FPSS report which was at issue in that proceeding (FPSS report #91-089352) has been proffered for the record as HRS exhibit 1/.

A transcript of the proceedings has not been filed.

FINDINGS OF FACT

1. Petitioner, B.R., is the sole proprietor of an adult congregate living facility known as Rona's Retirement Home located in Perrine, Dade County, Florida.

   
   

2. Petitioner has a net worth less than two million dollars and employs one part-time worker at the six bed facility.

   
   

3. At the time of hearing, Petitioner had four clients residing at the home for whom she provides room and board, snacks, and cleaning. Petitioner receives compensation from each at the rate of $575.00 per month.

   
   

4. Petitioner hired her attorney of record and agreed to pay her $200.00 per hour to represent her in connection with the underlying case (DOAH case no. 92-1889C) and the present cause.

   
   

5. Petitioner's attorney has been practicing since 1977 and has expended

   38.4 hours representing Petitioner in these matters.

6. Petitioner incurred $1,203.46 for costs in connection with Case no. 92- 1889C.

   
   

7. The formal hearing in DOAH case no. 92-1889C was conducted by Hearing Officer Michael Parrish on December 15, 1992.

   
   

8. During that formal hearing the Department presented testimony from one witness, the investigator, and offered one exhibit, the FPSS report at issue.

   
   

9. The Petitioner testified at the formal hearing on her own behalf and presented the testimony of one lay witness and one expert witness, a physician. Two exhibits regarding care given to the alleged victim (S.T.) were introduced on behalf of Petitioner.

   
   

10. Pertinent findings reached in DOAH case no. 92-1889C are:

    
    

    1. During the period of S.T.'s residence at Rona's Retirement Home, the Respondent was a caregiver for S.T. within the meaning of

       the definition at Section 415.102(4), Florida Statutes (1991).

    2. At the time of S.T.'s arrival at Rona's Retirement Home, his legs were swollen.

       S.T. had been transferred from the hospital to Rona's Retirement Home without any medical documentation or release papers. Upon inquiry by B.R., it was determined that

       S.T. was a diabetic.

    3. Arrangements were made by Rona's Retire- ment Home for a medical service to provide a nurse to administer insulin to S.T. on a daily basis. S.T. refused to allow the nurse to administer insulin to him during his stay at Rona's Retirement Home.

    4. S.T. was an uncooperative resident during his entire stay at Rona's Retirement Home. The retirement home specially prepared food for S.T. consistent with dietary guide- lines for diabetics. He refused to eat the specially prepared food and requested to be fed the same food as other residents.

    5. During his entire stay at Rona's Retirement Home, S.T. constantly made requests to go to the hospital. There was no medical basis for S.T.'s requests to go to the hospital.

    6. On August 29, 1991, Dr. Mark Caruso made his regular monthly visit to Rona's

       Retirement Home to examine the residents. On that day, Dr. Mark Caruso observed S.T. and asked B.R. if he should examine S.T. B.R. told Dr. Caruso that S.T. was a guardianship placement and that there was not, as yet, any approval by his guardian for any regular medical care. Dr. Caruso did not observe any indication that S.T. was in medical distress.

    7. On August 30, 1991, another resident at Rona's Retirement Home slipped and fell at the facility and an ambulance was called to transport that resident to the hospital.

       Upon arrival of the ambulance, S.T. asked

       one of the ambulance attendants to take him to the hospital. B.R. refused to allow S.T. to be taken to the hospital.

    8. As a result of a report of abuse or neglect, on the morning of August 30, 1991, Lourdes Paneda, a Protective Investigator with the Department of Health and Rehabilita- tive Services, visited Rona's Retirement Home where she interviewed S.T. At that time S.T. complained to Investigator Paneda of having

       chest pains. Investigator Paneda also observed that S.T. had swollen legs and that he seemed to be breathing heavily. Investigator Paneda was of the view that S.T. was suffering from medical distress, including the possibility of congestive heart failure. Accordingly, she contacted Dr. Mark Caruso and, following Investigator Paneda's description of her observations and concerns, Dr. Caruso said

       that if Investigator Paneda thought that S.T. was really sick, she should have him taken to Baptist Hospital.

    9. Investigator Paneda immediately called for rescue service. Shortly thereafter, the rescue service came and, for reasons not revealed in

       the record in this case, took S.T. to Deering Hospital. S.T. was seen and treated by emergency room physicians as soon as he got

       to the hospital. A few hours after his admis- sion to the hospital, S.T. was examined by Dr. Caruso.

    10. Based on his examination of S.T. and on the results of tests performed on S.T. at the hospital, Dr. Caruso was of the opinion that

        S.T. was not suffering from any acute medical distress. Dr. Caruso was also of the opinion that S.T. was not at any time in danger of death and that the conduct of B.R. did not place S.T. in danger of death or cause any harm to S.T.

    11. During the time S.T. was a resident at Rona's Retirement Home, B.R. exercised reasonable judgment in her care of S.T.

        All of her actions regarding the care of S.T. were reasonable. B.R. did not medically neglect S.T., nor did she neglect him in any other way. B.R. did not at any time put S.T. in any life-threatening situation.

11. The final order entered by the Department adopted each of the foregoing findings without exception and accepted the Hearing Officer's recommendation that the FPSS report be classified as unfounded with the Petitioner's name being expunged from the registry.

    
    

12. Petitioner was a prevailing party as defined in Section 57.111, Florida Statutes, in the underlying matter.

    
    

13. The Respondent did not present any evidence in this cause to support allegations that an award of fees would be unjust or that the agency's actions were substantially justified. The Respondent presented no evidence. Moreover, the attorney representing the Department at the formal hearing in this case did not attend the hearing of nor investigate the Department's case in the underlying matter.

    
    

14. No conflicting medical evidence was presented in the underlying case which required resolution.

    
    

15. A reasonable attorney's fee for 38.4 hours in an administrative proceeding such as the instant case is $7,680.00.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding.

    
    

17. Section 57.111, Florida Statutes, provides, in pertinent part:

    
    

    1. This section may be cited as the "Florida Equal Access to Justice Act."

    2. The Legislature finds that certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceed-

       ings. Because of the greater resources of the state, the standard for an award of attorney's fees and costs against the state should be different from the standard for an award against a private litigant. The purpose of this section is to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in certain situations an award of attorney's

       fees and costs against the state.

    3. As used in this section:

       1. The term "attorney's fees and costs" means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.

       2. The term "initiated by a state agency" means that the state agency:

          1. Filed the first pleading in any state or federal court in this state;

          2. Filed a request for an administrative hearing pursuant to chapter 120; or

          3. Was required by law or rule to advise a small business party of a clear point of entry after some recognizable

             event in the investigatory or other free-form proceeding of the agency.

       3. A small business party is a "prevailing small business party" when:

          1. 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;

             * * *

       4. The term "small business party" means:

          1. A sole proprietor of an

             unincorporated business, including a professional practice, whose principal office is in this state, who 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

             * * *

       5. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by a state agency.

    (4)(a) 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 administra- tive 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.

    1. 1. To apply for an award under this section, the attorney for the prevailing small business party must submit an itemized affidavit to the court which first conducted the adversarial proceeding in the underlying action, or to the Division of Administrative

       Hearings which shall assign a hearing officer, in the case of a proceeding pursuant to chapter 120, which affidavit shall reveal the nature and extent of the services rendered

       by the attorney as well as the costs incurred in preparations, motions, hearings, and appeals in the proceeding.

       2. 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.

    2. The state agency may oppose the application for the award of attorney's fees and costs by affidavit.

    3. The court, or the hearing officer in the case of a proceeding under chapter 120, shall promptly conduct an evidentiary hearing on the application for an award of attorney's fees and shall issue a judgment, or a final order in the case of a hearing officer. The final order of a hearing

    officer is reviewable in accordance with the provisions of s. 120.68. If the court affirms the award of attorney's fees and costs in whole or in part, it may, in its discretion, award additional attorney's

    fees and costs for the appeal.

    1. No award of attorney's fees and costs shall be made in any case in which the state agency was a nominal party.

    2. No award of attorney's fees and costs for an action initiated by a state agency shall exceed $15,000.

    (Emphasis added)

    
    

18. In the instant case, as a prevailing sole proprietor of a business Petitioner is entitled to attorney's fees and costs. The Department was not a nominal party in the underlying action. It initiated the original claim of neglect, failed to prove such claim at hearing, acquiesced to all findings of fact reached by the Hearing Officer who conducted the final hearing in the underlying matter, and presented no evidence in this case to support its claim that the actions in the underlying case were substantially justified.

    
    

19. While the Department may be encumbered by statutory timeliness in the investigation of claims of abuse or neglect, such limitations do not excuse the agency in a proceeding if there is no reasonable basis in law and fact at the time an action is initiated. Clearly, the conclusions reached by the trier of fact in the underlying case found that the Petitioner acted appropriately at all times. No medical evidence or lay testimony supported the investigator's finding of neglect.

ORDER

Based on the foregoing, it is, hereby, ORDERED:

That the Petitioner is entitled to an award of attorney's fees and costs in the total amount of $8,883.46, of which $7,680.00. is attorney's fees.

DONE AND ENTERED this 4th day of April 1994 in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 4th day of April 1994.

APPENDIX TO FINAL ORDER, CASE NO. 93-2461

Rulings on the proposed findings of fact submitted by the Petitioner:

1. None timely submitted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraph 1 is accepted.

2. Paragraph 2 is rejected as contrary to the weight of the evidence.

3. Paragraph 3 is accepted.

4. Paragraph 5 (there being no paragraph 4) is accepted.

5. Paragraphs 6 and 7 are accepted.

6. To the extent not addressed above in finding of fact paragraph 10, Paragraph 8 is rejected as not supported by the competent evidence presented.

7. Paragraph 9 is rejected as irrelevant or a conclusion not supported by credible evidence.

8. Paragraph 10 is accepted.

9. Paragraph 11 is rejected as contrary to the accepted evidence presented.

10. Paragraph 12 is rejected as contrary to the accepted evidence presented.

COPIES FURNISHED:

Donna Szczebak O'Neil

301 East Commercial Boulevard Fort Lauderdale, Florida 33334

Bonnie G. Katz

Assistant District Legal Counsel

Department of Health and Rehabilitative Services

401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128

Robert L. Powell, Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 93-002461F

Orders for Case No: 93-002461F