L. J., )
vs. ) CASE NO. 93-2462F
Respondent. )
Pursuant to notice, final hearing in the above-styled case was held in Tampa, Florida, on February 25, 1994. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by telephone. The parties, counsel, and witness were in Tampa.
The parties were represented at the hearing as follows: For Petitioner: Jeffrey A. Blau
Jeffrey A. Blau, P.A. 1511 South Church Avenue Tampa, Florida 33629
The issue in this case is whether Petitioner is entitled to attorneys' fees.
On May 3, 1993, Petitioner filed a motion for award of attorneys' fees and costs based on an administrative proceeding brought against Petitioner by Respondent in DOAH Case No. 92- 3396C.
At the hearing, Petitioner called one witness and offered into evidence seven exhibits, which were admitted. Petitioner was given 10 days within which to file the exhibits, but failed to do so; the exhibits are deemed withdrawn. However, Petitioner published the relevant portions of the exhibits, so the failure to file them is immaterial. Respondent called no witnesses and offered into evidence no exhibits.
Neither party ordered a transcript or filed a proposed final order.
On June 4, 1992, Respondent transmitted to the Division of Administrative Hearings file materials containing allegations that Petitioner was guilty of child abuse and Petitioner's demand for a hearing. The file was assigned DOAH Case No. 92-3396C.
After several continunaces, DOAH Case No. 92-3396C was set for final hearing March 30, 1993, in Tampa.
By letter dated March 23, 1993, Respondent, through the District Administrator of District 7, stated to Petitioner:
[Respondent], during the trial preparation phase of this case, has voluntarily decided to reclassify your role in the incident in question. As a result of this reclassification, you are no longer identified as having committed abuse or neglect with respect to the alleged incident and the [abuse] report will be changed accordingly.
On March 26, 1992, Respondent filed a motion to dismiss the case. On April 15, 1993, an Order Closing File was entered.
On May 3, 1993, Petitioner commenced the above-styled proceeding by filing a Motion for Award of Attorney's Fees and Court Costs together with an affidavit of fees and costs. On May 7, 1993, Respondent filed a response demanding that the motion be dismissed.
DOAH Case No. 92-3396C was initiated based on the complaints of a minor who charged that Petitioner, her uncle, had sexually abused her for six years on a weekly basis. Respondent's protective investigator spoke with the alleged victim, who repeated these charges, as well as to her parents, who believed her, and to a mental health counsellor, who either said she believed the alleged victim or at least did not say that she did not believe alleged victim.
Petitioner steadfastly denied the charges. However, the protective investigator did not contact him prior to closing the case as proposed confirmed. Nor did the protective investigator contact the alleged victim's physician, who would have informed the protective investigator that physical examination of the vagina of the alleged victim disclosed no abnormal findings. The physician would have stated that the alleged victim evidently had not previously engaged in sexual intercourse, which would have contradicted the alleged victim's charges against Petitioner.
The record does not disclose that the alleged victim ever recanted. The record contains no direct evidence of an improper purpose on the part of Respondent. In effect, Petitioner urges that such a purpose be inferred from the circumstances.
As long as the alleged victim stood by her earlier statements, there remained a genuine issue of fact. Under all of the circumstances, her statement may not have been entitled to much weight. Perhaps evaluating the evidence in like manner, Respondent wisely concluded that its resources could be better directed than litigating DOAH Case No. 92-3396C. But the persistence of the alleged victim in charging Petitioner with sexual abuse undermines the inference that Respondent pursued the prosecution of Petitioner for an improper purpose. In the absence of stronger evidence contradicting the alleged victim's charges, Petitioner fails to show that Respondent maintained the prosecution for an improper purpose.
CONCLUSION OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
This proceeding is governed by Section 120.57(1)(b)5. Sections 57.111 and 120.59(6) are unavailable because, respectively, Petitioner is not a small business party and Respondent is an agency.
Section 120.57(1)(b)5 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 purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the hearing office,r 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.
Petitioner has failed to show that any pleadings, motions, or other papers filed in DOAH Case No. 92-3396C were filed for an improper purpose.
