STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RUFUS PAUL PALMER, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 96-0978F

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER DISMISSING PETITION

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, convened a formal hearing in the above-styled case on June 19, 1996, by videoconference between Ft. Myers, Florida and Tallahassee, Florida.

APPEARANCES

For Petitioner: (Dr. Palmer did not appear in person or

through a representative)

For Respondent: Hugh R. Brown, Senior Attorney

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue for disposition in this proceeding is whether Rufus Paul Palmer, M.D. (Dr. Palmer) is entitled to attorney fees and costs pursuant to section 57.111, Florida Statutes. The parties stipulated that Dr. Palmer "prevailed" when the Board of Medicine entered its final order on November 29, 1995, dismissing disciplinary action against Dr. Palmer (AHCA Case No. 90-08022; DOAH Case No. 94-4049).

PRELIMINARY STATEMENT

Dr. Palmer's pleading styled "Respondent's Petition for Attorney Fees and Costs (and Consideration for Punitive Damages for Agency Fraud and Felonies upon Florida's Justice System: Solid Witness: Judge Nelly

1. Khouzam (Pinellas).)" was filed on February 27, 1996. Thereafter, the Agency for Health Care Administration (AHCA) filed its motion to dismiss or alternative response and commenced discovery.

   The formal hearing was set for May 20, 1996, but was continued at the request of both parties. Dr. Palmer's motion for recusal of the hearing officer, Mary Clark, was denied in an order entered May 31, 1996, which order also rescheduled the formal hearing.

   
   

   On June 3, 1996, AHCA filed a motion to compel discovery and Dr. Palmer responded to that motion. On June 17, 1996 Dr. Palmer filed a pleading styled "Petitioner's Urgent and Good-Cause Motion for Reconsideration of His Motion for Recusal of Mary Clark and for Indefinite Continuance Pending Public Investigation of AHCA/Douglas Cook/Gloria Henderson and Its Agents/Attorneys' Ethical and Criminal Misconduct as Proven by Documentary Evidence and Available Testimony: Larry Gene McPherson, Jr., Esq., Randolph Paul Collette, Esq., Joseph Sailor Garwood, Esq., and (as of 6-14-96) Hugh Richard Brown, Esq., or in the Alternative, Petitioner's Public Notice of His Interim Appeal to the Florida Second District Court of Appeal."

   
   

   The parties were informed by the hearing officer's assistant, by telephone, that all pending motions would be considered at the commencement of the formal hearing. On the morning of June 19, 1996, Dr. Palmer informed counsel for AHCA and the hearing officer's assistant that he would not attend the hearing.

   
   

   The hearing convened as provided in the May 31st amended notice. AHCA appeared through its attorney, Hugh R. Brown; Dr. Palmer did not appear. The court reporter and one witness for AHCA were present at the Ft. Myers location. The hearing officer, counsel for AHCA and another witness for AHCA were present at the Tallahassee location.

   
   

   The hearing officer convened the hearing long enough to establish the appearances and to summarize the disposition reflected below.

   
   

   DISPOSITION OF THE CASE

   
   

   1. Dr. Palmer's motion for reconsideration of his motion for recusal of the hearing officer is DENIED. Neither the original motion for recusal filed May 14, 1996 nor the motion for reconsideration filed on June 17, 1996 include the affidavit required by Rule 60Q-2.013, Florida Administrative Code, or section 38.10, Florida Statutes. Even if the motions had been made in the form of affidavits, neither alleged facts which, taken to be true, would cause the movant to have a well- grounded fear that he would not receive a fair hearing. "The fears of judicial bias must be objectively reasonable." State v. Shaw, 643 So2d 1163, 1164 (Fla. 4th DCA 1994).

      
      

   2. Dr. Palmer's motion for "indefinite continuance" filed on June 17, 1996 is DENIED. The hearing was continued once because both parties sought a delay. Dr. Palmer's second motion for continuance, filed two days before the hearing, was untimely and without good cause. See Rule 60Q-2.017, Florida Administrative Code. The basis for the request for continuance, Dr. Palmer's desire for public investigation of various AHCA employees, is unrelated to the issues in a proceeding for fees and costs pursuant to section 57.111, Florida Statutes.

   3. Dr. Palmer's petition for fees and costs is DISMISSED. His failure to appear at the final hearing is grounds for dismissal, as provided in the order and amended notice of hearing entered May 31, 1996. By failing to appear, Dr. Palmer failed to meet his initial burden of proving that he is a "small business party." Although AHCA stipulated that he "prevailed," Dr. Palmer had ample notice that his status as a "small business party" was controverted. The burden, therefore, never shifted to the agency for its proof that its action was substantially justified or that exceptional circumstances exist. See, Department of Professional Regulation v. Toledo Realty, Inc., 549 So2d 715 (Fla. 1st DCA 1989).

      
      

   4. Dr. Palmer's petition for fees and costs also included a request for "punitive damages." There is no authority in section 57.111, Florida Statutes, nor elsewhere, for a hearing officer to make such an award.

      
      

   5. Respondent's motion to compel discovery is moot.

DONE and ORDERED this 21st day of June, 1996, in Tallahassee, Florida.

MARY CLARK, 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 21st day of June, 1996.

COPIES FURNISHED:

Hugh R. Brown Senior Attorney Agency for Health

Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rufus Paul Palmer, M.D. 5581 Amoroso Drive

Fort Myers, Florida 33919

Sam Power, Agency Clerk Agency for Health Care

Administration

Ft. Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome Hoffman, General Counsel Agency for Health Care

Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

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.

=================================================================

DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

RUFUS PAUL PALMER, M.D.,

Appellant,

v. CASE NO. 96-02973

DOAH CASE NO. 96-978F

AGENCY FOR HEALTH CARE ADMINISTRATION,

Appellee.

/

Opinion filed April 18, 1997.

Appeal from the Division of Administrative Hearings. Rufus Paul Palmer, M.D., pro se.

Kathryn L. Kasprzak, Tallahassee, for Appellee. PER CURIAM.

Affirmed.

FRANK, A.C.J., PARKER and BLUE, JJ., Concur.

M A N D A T E

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STYLE: Rufus P. Palmer, MD v. Agency for Health Care Admin. COUNTY: Lee

APPELLATE CASE NO: 96-02973 TRIAL COURT CASE NO: 96-978F

This cause having been brought to this Court by appeal and after due consideration, the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that further proceedings be had in said cause in accordance with the opinion of this Court and with the rules of procedure and laws of the State of Florida.

WITNESS, The Honorable Edward F. Threadgill, Jr.,

Chief Judge of the District Court of Appeal of the State of Florida, Second District, and the seal of said

court at Lakeland, Florida, on this day.

May 6, 1997

(SEAL)

WILLIAM A. HADDAD

Clerk, District Court of Appeal Second District

Docket for Case No: 96-000978

Orders for Case No: 96-000978