STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. F., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 96-1121F

   ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER OF DISMISSAL

   
   

   On February 29, 1996, J.F. filed a Motion for Reimbursement of Attorney's Fees and Costs (Motion) incurred by him in connection with his efforts, in DOAH Case No. 95-5549C, to have the Department of Health and Rehabilitative Services (Department) amend or expunge a proposed confirmed report of adult abuse. The Motion read as follows:

   
   

   COMES NOW the Respondent [in DOAH Case No.

   95-5549C], J.F., by and through his under- signed attorney, and files this his Motion For Attorney's Fees and Costs and alleges:

   1. J.F. became a prevailing party in this matter on February 14, 1996 as a result of his entering into a settlement favorable to him on the only matter at issue. Exhibit "A". 1/

   2. J.F. is a small business party and is entitled to the reimbursement of attorney's fees and costs pursuant to Fla. Stat. Section 57.111.

   3. This action was initiated by the State Agency, was not substantially justified and had no reasonable basis in law or fact upon initiation.

   4. J.F. was compelled to hire undersigned counsel to defend him in this matter and agreed to pay her a reasonable attorney's fee.

   5. An itemized affidavit is attached hereto specifically itemizing costs expended and attorney's fees incurred. Exhibit "B". 2/

WHEREFORE, undersigned counsel prays that this Court award attorney's fees and costs to Respondent, J.F. as delineated in the attached affidavit.

On March 13, 1996, the Department filed a response in opposition to the Motion. In its response, the Department argued, among other things, that J.F., in his

Motion, had failed to establish "his eligibility as a small business party, pursuant to the statutory requirements."

The Hearing Officer, on March 25, 1996, issued an order dismissing J.F.'s Motion because it did not contain the information required by subsection (1)(d) of Rule 60Q-2.035, Florida Administrative Code, which provides that a "prevailing small business party," applying to the Division of Administrative Hearings (Division) for an award of attorney's fees and costs pursuant Section 57.111, Florida Statutes, must file with the Division a petition which indicates the following:

where the small business party's domicile and principal office are, how many employees the small business party has, whether the petitioner is a sole proprietor of an unin- corporated business, and if so, whether the petitioner's net worth exceeds $2,000,000, whether the small business party is a part- nership or corporation, including a pro- fessional practice, and, if so, whether the small business party's net worth exceeds

$2,000,000.

The dismissal was without prejudice "to J.F. filing, on or before April 15, 1996, an amended petition for attorney's fees and costs meeting the requirements of Rule 60Q-2.035, Florida Administrative Code." The Hearing Officer's Order of Dismissal further provided that "[t]he Department [would] have 20 days from the date of the filing any amended petition to file with the Division an amendment to its response to J.F.'s Motion."

On April 3, 1996, J.F. filed an Amended Motion for Reimbursement of Attorney's Fees and Costs (Amended Motion). The Amended Motion read as follows:

COMES NOW, Petitioner, J.F., by and through his undersigned counsel and files this Amended Motion For Reimbursement of Attorney's Fees and Costs and states:

1. J.F. became a prevailing party in this matter on February 14, 1996 as a result of his entering into a settlement favorable to

   him on the only matter at issue. Exhibit "A".

2. J.F. was accused of neglect as a result of being the administrator of Briarwood Manor, Inc., a Florida Corporation which he solely owns. Briarwood Manor, Inc., is an A[C]LF.

3. J.F. is a small business party and is entitled to the reimbursement of attorney's fees and costs pursuant to Fla. Stat. Section 57.111.

4. Briarwood Manor, Inc. has its principal place of business at 5631 N.W. 28th Street, Lauderhill, FL 33313, Broward County. Neither

   J.F. nor Briarwood Manor, Inc., jointly or severally, have a net worth in excess of Two Million and NO/100 Dollars ($2,000,000.00).

5. J.F. has three (3) full-time employees and four (4) part-time employees.

6. J.F. qualifies as a small business party.

7. As a result of the foregoing, J.F. the Respondent in the above-mentioned case is the prevailing party pursuant to Fla. Stat. 57.111 and Fla. Admin. Code R. 60Q-2.035

8. This action was initiated by the State Agency, Exhibit "B," 3/ was not substanti- ally justified and had no reasonable basis in law or fact upon initiation.

9. J.F. was compelled to hire undersigned counsel to defend him in this matter and agreed to pay her a reasonable attorney's fee.

10. An itemized Affidavit of Attorney's Fees and Costs has been previously filed in this matter. Undersigned counsel expended

    23.65 hours in the underlying matter. She has been a practicing attorney for 19 years and her fee is $200.00 per hour for her services. As a result, undersigned counsel is entitled to reasonable attorney's fees in the amount of $4,730.00. Costs were expended in the above referenced matter in the amount of $1,387.76.

11. There are no circumstances which would make the award of attorney's fees and cost[s] to J.F. unjust.

1[2]. The Department of Health and Rehabili- tative Services was not merely a nominal party.

WHEREFORE, undersigned counsel pray[s] that this Court award attorney's fees and costs to Respondent, J.F.

On April 17, 1996, the Department filed a response in opposition to the Amended Motion. In its response, the Department argued, among other things, that J.F. has failed to "establish[] his case, as a party seeking an award of attorney's fees has the initial burden of proving that it is (a) a small business party, within the meaning of the statute, which (b) had prevailed in an earlier adjudicatory proceeding or administrative proceeding."

On April 25, 1996, the Hearing Officer issued an Order to Show Cause in the instant case which provided, in pertinent part, as follows:

J.F. is seeking an award of attorney's fees and costs in the instant case pursuant Section 57.111, Florida Statutes, subsection (4)(a)

of which provides as follows:

"Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party 4/ in any adjudicatory proceeding or administrative 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."

To be entitled to such an award he must allege and prove his status as a "small busi-

ness party," as that term is defined in sub- section (3)(d) of Section 57.111, Florida Statutes, which provides as follows:

"The term 'small business party' means:

1.a. 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

b. A partnership or corporation, including a professional practice, which has its princi- pal office in this state and 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; or

2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under s. 72.011 or in any adminis- trative proceeding under that section and s. 120.575(1)(b) to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor."

See Department of Professional Regulation

v. Toledo Realty, Inc., 549 So.2d 715, 717 (Fla. 1st DCA 1989); Thompson v. Department of Health and Rehabilitative Services,

533 So.2d 840, 841 (Fla. 1st DCA 1988).

It appears from an examination of J.F.'s Amended Motion that J.F. does not meet the foregoing statutory definition of a "small business party" ("which must be [according

to the statute] a corporation, a partnership, or a sole proprietor of an unincorporated business.") Florida Real Estate Commission

v. Shealy, 647 So.2d 151, 152 (Fla. 1st DCA 1994). While J.F., in his Amended Motion, alleges that he is the sole owner of Briar- wood Manor, Inc., and that Briarwood Manor, Inc., is a Florida corporation that has neither more than 25 employees nor a net worth in excess of two million dollars," Briarwood Manor, Inc., was not a party in DOAH Case

No. 95-5549C, nor is it the one seeking an award of attorney's fees and costs in the instant case. It is J.F. who is seeking such an award. He is asking to be reimbursed for the attorney's fees and costs he personally incurred as a result of his appearance, in his individual capacity, in DOAH Case No.

95-5549C. Section 57.111, Florida Statutes, however, does not authorize an award of

attorney's fees and costs to anyone other than "a corporation, a partnership, or a sole proprietor of an unincorporated business." Florida Real Estate Commission v. Shealy,

647 So.2d 151, 152 (Fla. 1st DCA 1994)(appli-

cant for a real estate license, who success- fully challenged, in an administrative pro- ceeding, the agency's preliminary denial of his application for licensure, was not a "small business party," within the meaning of Section 57.111, Florida Statutes, notwith- standing that "he desired the license for work which he intended to perform on behalf of a corporation wholly owned by himself and his wife;" in so holding, the First District noted that "the corporation was not a party to any of the proceedings below, and the [applicant] appeared in his individual cap- acity;" the court further commented that "

[a]lthough the [applicant] and the corporation were found to be 'one and same entity' based on the [applicant's] control of the business, the statute does not permit such disregard of the corporate form").

Accordingly, J.F. is hereby ORDERED TO SHOW CAUSE in writing, no later than May 10, 1996, why his Amended Motion should not dismissed on the ground that he does not qualify as a "small business party," within the meaning of Section 57.111, Florida Statutes. If J.F.

does not file a written response to this Order to Show Cause on or before May 10, 1996, the Hearing Officer will issue a Final Order of Dismissal in the instant case.

To date, J.F. has not filed a written response to the Hearing Officer's April 25, 1996, Order to Show Cause. Accordingly, his Amended Motion is hereby DISMISSED because he does not qualify as a "small business party," within the meaning of Section 57.111, Florida Statutes. See Florida Real Estate Commission v. Shealy, 647 So.2d 151, 152 (Fla. 1st DCA 1994).

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May, 1996.

STUART M. LERNER, 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 May, 1996.

ENDNOTES

1/ The settlement agreement (Exhibit "A") provided as follows: The Petitioner, Department of Health and Rehabilitative Services and the Respondent,

J.F., stipulate and agree to the settlement of the above styled case according to the following terms and conditions:

1. An Administrative Hearing of FPSS Report 95-03921 was scheduled for February 16, 1996.

2. The Respondent, J.F. hereby agrees to

   drop his appeal petition against the Petitioner, Department of Health and Rehabilitative Services except as to the issue of entitlement to attorney's fees and costs.

3. The Petitioner hereby agrees to change the aforementioned FPSS Abuse Report to Closed With- out Classification. The record will be amended and all references to J.F., as the alleged perpetrator will be deleted.

2/ According to the attached affidavit (Exhibit "B"), the "costs expended and attorney's fees incurred" were $1,387.76 and $4,730.00, respectively.

3/ Exhibit "B" was a June 13, 1995, letter from the Department to J.F., which informed J.F. of the following:

The Department of Health and Rehabilitative Services has completed its investigation of a report of abuse, neglect or exploitation and has classified the report as PROPOSED CON- FIRMED. A PROPOSED CONFIRMED REPORT is de-

fined in Chapter 415, Florida [S]tatutes, as one in which a protective investigation alleges that abuse, neglect or exploitation

did occur and which identifies the perpetrator. You have been named as the alleged perpetrator in this report.

This investigation has verified the follow- ing allegations:

Neglect: You failed to follow through on a prescribed treatment plan for Depakote, an anti- epileptic agent. As a result, the victim was hospitalized for 11 days.

You may request a copy of the proposed con- firmed report by writing to the unit super- visor whose name and address appear at the bottom of page 3.

The letter further advised J.F. that he had the opportunity either to submit a statement/rebuttal letter explaining the incident or to request that the Department amend or expunge the report.

4/ Subsection (3)(c) of Section 57.111, Florida Statutes, provides that "[a] small business party is a 'prevailing small business party' when: . . . [a] settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised

during the course of the proceeding." Accordingly, contrary to the argument advanced by the Department in its response to the Amended Motion, it is possible for a small business party to become a "prevailing small business party," within the meaning of Section 57.111, Florida Statutes, by entering into a settlement agreement with the state agency that initiated the proceeding.

COPIES FURNISHED:

Donna Szczebak O'Neil, Esquire

301 East Commercial Boulevard Fort Lauderdale, Florida 33334

Lysa Friedlieb, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard Suite 511

Fort Lauderdale, Florida 33301

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 7, Suite 728

Tallahassee, Florida 32399-0700

Richard Doran, 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: 96-001121F

Orders for Case No: 96-001121F