STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PREFERRED SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-2534F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

THIS CAUSE came on to be heard on the Motion to Dismiss filed by Respondent before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on May 30, 1995 in Tallahassee, Florida. The Petitioner filed an objection to the motion and a reply thereto. The arguments presented in the motion have been fully considered. The following appearances were entered:

APPEARANCES

For Petitioner: Terrence William Ackert, Esq.

Post Office Box 2548

Winter Park, Florida 32790

For Respondent: Eric D. Dunlap, Esquire

Assistant District 6 Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Division of Administrative Hearings has subject matter jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1)(b)10., Florida Statutes for costs and attorney's fees, if a decision of a case on appeal to the District Court of Appeal has not been rendered.

Whether the Division of Administrative Hearings has subject matter jurisdiction for petition for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, if a decision of a case on appeal to the District Court of Appeal has not been rendered.

PRELIMINARY STATEMENT

On May 17, 1995, Petitioner filed a Motion for Attorney's Fees and Costs with the Clerk of the Division of Administrative Hearings. On May 30, 1995, the Respondent filed a Motion to Dismiss Petitioner's Motion for Attorney's Fees and

Costs. Subsequently, Petitioner filed a reply to the Respondent's Motion and requested a formal hearing under the provisions of Section 120.57(1)(b)10 and/or 57.111, Florida Statutes, assuming it is the prevailing party on appeal.

Based upon all of the uncontroverted facts, the following findings are determined:

FINDINGS OF FACT

1. On December 29, 1994, the undersigned Hearing Officer issued a Recommended Order in the underlying case of Preferred Services, Inc. v. Department of Health and Rehabilitative Services and Wekiva Center Partnership, DOAH Case No. 94-4890BID, a bid dispute matter in which the Petitioner was not the prevailing party.

   
   

2. The decision in the Recommended Order, which upheld the Department's action, was adopted by the Secretary in a Final Order, dated January 23, 1995.

   
   

3. Petitioner timely filed a notice of appeal of the Final Order to the Florida Fifth District Court of Appeal, under the provisions of Section 120.68, Florida Statutes (1993). The court, in the matter of Preferred Services, Inc.

   v. Department of Health and Rehabilitative Services, DCA Case No. 95-0461, has not rendered a decision as of the date of this Order.

   
   

4. On May 17, 1995, Petitioner filed its Motion for Attorneys Fees and Costs with the Clerk of the Division of Administrative Hearings seeking reimbursement under the alternate provisions of Sections 57.111 and 120.57(1)(b)10., Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 57.111, Florida Statutes only. However, Petitioner's application for attorney's fees and costs under this provision of the statute is premature.

   
   

6. In order to be entitled to an award under the "Florida Equal Access to Justice Act", Florida law requires that the attorney for a prevailing small business party submit an itemized affidavit to the Division of Administrative Hearings, Section 57.111(4)(b)1., Florida Statutes. Under this law, the Division of Administrative Hearings is charged with the responsibility to conduct the formal hearing and issue a final order that is not subject to review by the agency. See: Department of Health and Rehabilitative Services v. S.G., 613 So.2d 1380, 1383, 1386 (Fla. 1st DCA 1993) and Gentele v. Department of Professional Regulation, 513 So.2d 672 (Fla. 1st DCA 1987).

   
   

7. However, jurisdiction to conduct such a hearing by this tribunal does not arise until after the appellate court has issued its Mandate reversing the final order of the agency in the underlying case, which would thus make the Petitioner a prevailing small business party. Petitioner then has sixty (60) days after that date in which to file an application with the Division seeking fees. Section 57.111(4)(b)2., Florida Statutes. As cogently stated by the First District Court of Appeal in Department of Environmental Regulation vs. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982), review denied 436 So.2d 98 (Fla. 1983):

   An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction. When acting outside the scope of its delegated authority, an agency acts illegally and is subject to the jurisdiction of the courts when necessary to prevent encroachment on the rights of individuals.

   
   

8. Jurisdiction to determine entitlement to an award of attorney's fees and costs under the provisions of Section 120.57(1)(b)10., Florida Statutes, lies exclusively in the hands of the appellate court. Customarily, under this provision of the statute, the appeals court remands to the hearing officer to define the amount of the fees and costs. Ganson v. Department of Administration, 554 So.2d 516, 522 (Fla. 1st DCA 1989). The Hearing Officer then conducts a hearing and issues a Report and Recommendation which the appellate court accepts, modifies or rejects. See: Ganson v. Department of Administration, 554 So.2d 522 (Fla. 1st DCA 1989).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the Petitioner's Motion for Attorney's Fees and Costs in Case

No. 95-2537F is DISMISSED without prejudice, for lack of jurisdiction, and this

case is closed.

DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 15th day of June, 1995.

COPIES FURNISHED:

Terrence William Ackert, Esquire Post Office Box 2548

Winter Park, Florida 32790

Eric D. Dunlap, Esquire

Assistant District 6 Legal Counsel Department of Health and Rehabilitative Services

400 West Robinson Street Suite S-827

Orlando, Florida 32801

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO APPEAL

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 Rule 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: 95-002534F

Orders for Case No: 95-002534F